Johnson v. State of Oregon et al
Filing
46
OPINION AND ORDER. Petitioner's amended petition for writ of habeas corpus 5 is GRANTED on ground one and DENIED on grounds two through eleven. Petitioner's convictions for Sodomy in the First Degree and Unlawful Sexual Penetration in the First Degree are vacated. Respondents are ordered to release petitioner from custody and discharge him from all other adverse consequences of his conviction unless petitioner is brought to retrial within 90 days of the date of the Judgment herein becomes final, plus any additional delay authorized by State law. IT IS SO ORDERED. Signed on 05/02/2011 by Judge Malcolm F. Marsh. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
RICHARD JOHNSON,
Petitioner,
v.
OREGON BOARD OF PAROLE AND
POST-PRISON SUPERVISION and
KLAMATH COUNTY OREGON PAROLE
OFFICER WILLIAM WILKENLOH,
Respondents.
TONIA L. MORO
Assistant Federal Public Defender
15 Newtown Street
Medford, OR 97501
Attorney for Petitioner
JOHN KROGER
Attorney General
KRISTEN E. BOYD
Assistant Attorney General
Department of Justice
1162 Court Street
Salem, OR 97301-4096
Attorneys for Respondents
MARSH, Judge
1 - OPINION AND ORDER·
CV. 09-701-MA
OPINION AND ORDER
Petitioner Richard Johnson,
Oregon
Department
of
an inmate in the custody of the
Corrections,
proceeding pursuant to 28 U.S.C.
§
brings
2254.
this
habeas
corpus
For the reasons set forth
below, the petition is granted.
FACTUAL BACKGROUND
On November 20, 2000, petitioner was indicted on five counts
of Sexual Abuse in the First Degree, one count of Unlawful Sexual
Penetration in the First Degree,
First Degree.
and one count of Sodomy in the
The charges arose out of three separate incidents
occurring between January 1, 1998 and February 20,
petitioner and the victim,
1999, between
D.G., who was then eight years old.
The incidents occurred when petitioner and his significant other,
Judy Boren, were babysitting D.G.
The alleged abuse came to light on or about February 20, 1999,
after D.G. spent the night with petitioner and Ms. Boren at a motel
room where petitioner was then residing.
The following morning,
D.G. reported to her mother, Diana Johnson, that petitioner entered
the bathroom while she was showering and washed her breasts and
genital area and that petitioner had put his hand in her shorts for
about ten minutes.
D. G. 's mother reported the incident to the police.
Oregon
State Trooper William Hakin interviewed D.G. at the Klamath Falls
Patrol Office.
Following Trooper Hakin's interview, Ms. Johnson
2 - OPINION AND ORDER
scheduled an evaluation for D.G. at the Klamath Lake Child Abuse
Response and Evaluation Services (CARES).l
The CARES physical examination of D.G. was conducted by Gerri
Britsch, M.D.,
and the CARES interview of D.G.
Social Worker Robin Flagor.
was conducted by
Oregon State Police Sergeant Stephanie
Gourley watched the interview from behind a one-way mirror.
the videotaped CARES interview,
D.G.
During
repeated her statement that
petitioner had put his hand in her shorts for ten minutes and also
that petitioner licked her vagina.
two addi tional
In the interview, D.G. revealed
instances of abuse by peti tioner occurring at a
house on Fargo street where D.G., her mother,
lived.
D. G.
described the first
and petitioner all
incident occurring behind the
house in a metal shed, and a second incident occurring inside the
house.
Officer Gourley arrested petitioner following the CARES
interview.
When confronted by Segeart Gourley with the charges by D.G.,
petitioner contended that it was a misunderstanding,
and that a
letter he planned to send to Ms. Johnson would resolve the issue.
Peti tioner
examination
contended
was
for
that
he
purposes
had
examined
D. G.,
of
determining
if
but
D.G.
that
the
had
been
lA CARES evaluation consists of two parts: (1) a physical
examination performed by a medical provider specially trained in
the area of child abuse, and (2) an interview conducted by a
nurse or social worker specially trained in the area of child
abuse.
The interview is typically videotaped.
3 - OPINION AND ORDER
sexually abused.
(Resp. Ex. 120.)
Petitioner facilitated Officer
Gourley obtaining the letter.
Petitioner waived his
right to a
jury trial and was tried
before the court on March 13-14, 2001.
The prosecution's primary witnesses were Trooper Hakin,
trial.
Ms. Flagor, and Dr. Britsch.
D.G.
D.G. did not testify at
Hakin testified that he interviewed
at the Klamath Lake Patrol Office.
During that interview,
Hakin testified that D.G. told him that while she was spending the
night with petitioner, petitioner put his hand in her shorts for
ten minutes.
following
the
Hakin testified that D.G. described that immediately
incident,
she
attempted to
call
her mother,
but
petitioner would not let her.
Ms.
Flagor testified that she conducted the CARES interview
with D.G. and that the CARES interview was videotaped.
Flagor also
authenticated several anatomically correct drawings that
Flagor
used during her interview with D.G. to clarify what parts of the
body D.G. was describing.
The drawings and CARES videotape were
admitted as evidence and viewed by the judge.
Dr. Britsch testified that she performed the CARES physical
examination on D. G.
Dr.
examination was normal
sexual abuse.
Britsch testified that D.G.'s genital
in that
it did not
reveal any signs of
Dr . Britsch also testified that D. G . . stated that
petitioner had touched her "privates" or "cooter."
Trial
Transcript
(Tr.)
4 - OPINION AND ORDER
79-80.)
Dr .
Britsch
(Resp. Ex. 103,
also
offered
her
medical opinion that D.G. suffered "probable child sexual abuse."
(Tr.
85.)
The prosecution also admitted as evidence two letters
written by petitioner describing the three incidents with D.G.
Petitioner's trial counsel obj ected to the admission of D. G. ' s
out-of-court statements to Hakin,
the CARES videotape and
unavailable
for
d~awings,
Flagor and Britsch, as well as
contending that because D.G. was
cross-examination,
admission
of
the
statements
violated the Confrontation Clause of the Sixth Amendment.
25-28,
51-52.)
(Tr. at
The trial court ruled that D.G. was unavailable,
and that the statements' to Trooper Hakin and CARES personnel,
as
well as the videotape and drawings, were reliable under statutory
exceptions to hearsay under the
803 (18a) (b) (sex
abuse·
Ore~on
statements
by
Evidence Code
child
(OEC)
witness)
and
Rules
804
(statements for medical treatment or diagnosis) .
Petitioner testified in his own defense.
Petitioner testified
that he suspected that D.G. had been sexually abused, based on two
previous instances where D.G. had grabbed his hand and placed it on
her privates.
Petitioner admitted to washing D.G. at the motel,
but did so because the water in the shower could become quite hot
unexpectedly.
(Tr.
174.)
Peti tioner
admi tted
that
he
touched
petitioner's genitalia, but contended that he did so in order to
determine whether her hymen was intact, and recalled that his chin
may have touched D.G.
(Tr.
189-90.)
Petitioner denied licking
D.G. or that his contact was for a sexual purpose.
5 - OPINION AND ORDER
Petitioner was found guilty of one count of Unlawful Sexual
Penetration in the First Degree and one count of Sodomy in the
First Degree.
Petitioner was acquitted of the remaining charges.
Petitioner was
sentenced to
Penetration count,
concurrently.
a
20-year
pursuant to
100 months
and 100 months
(Resp. Ex. 101.)
term
of
O.R.S~
§
on
on the
the
Unlawful
Sodomy count,
Sexual
to
run
Petitioner also was sentenced to
post-prison
supervision,
less
time
served
144.103.
Petitioner filed a direct appeal,
raising a single issue
that the trial court erred in admitting statements made by D.G. to
Hakin and CARES personnel when D.G. was not made available at trial
as a witness.
(Resp. Ex. 104.)
Petitioner argued, in part, that
the statements did not have the requisite "indicia of reliability"
to qualify as an exception to hearsay necessary to satisfy the
Confrontation Clause under Ohio v. Roberts, 448 U.S. 56, 66 (1985).
The Court of Appeals affirmed petitioner's conviction without
opinion and the Oregon Supreme Court denied review on January 27,
2004.
State v. Johnson, 190 Or. App. 398·, 79 P.3d 917 (2003), rev.
denied, 336 Or. 377 (2004).
Petitioner's appellate judgment issued
on March 2,
Ex.
2004.
(Resp.
108.) .
petition for writ of certiorari.
Petitioner did not file a
Petitioner's conviction became
final on or about June 2, 2004, when his 90 day period within which
to petition for writ of certiorari elapsed.
6 - OPINION AND ORDER
Meanwhile, on March 8, 2004, the United States Supreme Court
issued Crawford v. Washington, 541 u.S. 36 (2004), which partially
overruled
Ohio
v.
determined
that
out-of-court
under
the
Roberts.
Confrontation
In
Crawford,
testimonial
Clause,
the
Supreme
statements
unless
the
are
Court
barred
wi tnesses
are
unavailable and the defendant had a prior opportunity to cross
examine the wi tness,
deemed reliable.
regardless
of whether
such statements are
541 U.S. at 68.
On October 21, 2004, petitioner filed a state post-conviction
proceeding,
counsel:
D.G.;
alleging
three
claims
of
ineffective assistance
of
(1) counsel failed to object to inadmissible hearsay from
(2) counsel failed to object to the admission of portions of
the letter written by petitioner; and (3) appellate counsel failed
to anticipate and argue the Confrontation Clause issues set forth
in Crawford.
A week prior to the post-conviction hearing, petitioner filed
a notice under Church v. Gladden, 244 Or. 308, 417 P.2d 993 (1966),
attempting to amend one of his claims and asserttng that Crawford
rendered
his
conviction
"void."
(Resp.
Ex.
132.)
Petitioner
contended that he did not need to assert an ineffective assistance
of
counsel
claim to
obtain
relief
under
Crawford.
The
conviction court denied relief without comment or citation.
Ex. 129.)
7 - OPINION AND ORDER
post(Resp.
On appeal, petitioner asserted the PCR court erred in denying
him relief because Crawford was issued before his conviction became
final,
and therefore,
applied to his case.
The Oregon Court of
Appeals affirmed the PCR court's decision without opinion, and the
Oregon Supreme Court denied review.
Johnson v. Hill, 220 Or. App.
457, 187 P.3d 231, rev'. denied, 345 Or. 317
(2008).
DISCUSSION
In the current proceeding, in ground one, petitioner asserts
that his Sixth Amendment right to Due Process was violated when
out-of-court
witness
statements
were
Confrontation Clause under Crawford.
admitted,
violating
the
Petitioner also asserts ten
grounds of ineffective assistance of counsel in grounds two through
eleven.
that
the
Respondents move to deny habeas corpus relief on the basis
state
court's
deference under 28 U.S.C.
denial
§
of
2254(d).
ground
one
is
entitled
to
Respondents also move to deny
relief on the basis that peti tioner has not met his burden on
grounds two through eleven, and that grounds two through eleven are
procedurally defaulted.
In the briefing to this court, petitioner
discusses only the merits of ground one.
I .
Ground One.
A.
Standards.
Under 28 U.S.C.
§
2254(d),
federal habeas corpus relief may
not be granted on a claim that was adjudicated on the merits in
state court, unless the adjudication:
8 - OPINION AND ORDER
(1) resulted in a decision that was contrary to, or
involved
an
unreasonable
application
of,
clearly
establishe¢ Federal law, as d~termined by the Supreme
Court of the United States; or
(2)
resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
Under the "contrary to"
clause of
§
2254 (d) (1),
a
federal
habeas court may not grant relief unless the state court applied a
rule of law that contradicts the governing law set forth in Supreme
Court
cases,
or
indistinguishable
confronts
from
a
a
set
of
decision
facts
of
the
nevertheless arrives at a different result.
529
u.S. 362, 411 (2000).
standard,
a
federal
that
are
Supreme
materially
Court
but
Williams v. Taylor,
Under the "unreasonable application"
court may grant habeas relief if the state
court identifies the correct governing legal principle, but applied
those
principles
to
the
unreasonable" manner.
facts
of
the
L0 c kye r
v.
Andr a de ,
(2003); Williams, 529 U.S. at 409.
be more than erroneous,
case
in
an
"obj ecti vely
53 8 u. S .
63 ,
75- 7 6
The state court's decision must
it must be "objectively unreasonable."
Bell v. Cone, 535 U.S. 685, 694 (2002); Woodford v. Visciotti, 537
U . S. 1 9 , 2 4 - 2 5 ( 2 0 02) (p e r cur i am) .
In Ground One, petitioner asserts that his rights under the
Confrontatio'n Clause of the Sixth Amendment were violated when the
trial court admitted out-court-statements by D.G.
According to
petitioner, D.G.'s statements to Britsch, Flagor, and Hakin are not
9 - OPINION AND ORDER
admissible
under Crawford.
Peti tioner maintains
that
Crawford
applies to his case on direct review and at post conviction because
Crawford issued before his conviction became final.
Respondents
petitioner's
acknowledge that Crawford was announced before
direct
review
became
final,
but
contends
that
Crawford was not "clearly established Federal law" for purposes of
review under 28 U.S.C.
"clearly
established
§
2254(d).
Federal
Respondents argue that what is
law"
under
§
2254(d)
should
be
assessed at the time of the relevant state court decision, and not
when petitioner's direct review becomes final.
In this case, on direct review,
the trial court, the Oregon
Court of Appeals and the Oregon Supreme Court each applied Ohio v.
Roberts,
which was then controlling federal
announced March 8,
review
and
the
2004,
appellate
law.
Crawford was
after the Oregon Supreme Court denied
judgment
had
issued.
According
to
respondents, because Ohio v. Roberts was the controlling law at the
time
of
the
state
courts'
decisions,
the
relevant
state
court
decisions are neither contrary to, nor an unreasonable application
of clearly established Federal law under 28 U.S.C.
Therefore,
§
2254(d) (1).
the critical question in this case becomes what
date should be used for assessing "clearly established Federal law"
- the date the judgment of conviction becomes final, or the date of
the relevant state court decision.
10 - OPINION AND ORDER
As the parties correctly indicate, there is a conflict among
the Circui t
Courts of Appeal as to whether clearly established
Federal law is examined as of the date of the relevant state court
decision,
or
the
date
purposes.
Compare Greene v. Palakovich, 606 F.3d 85, 95 (3d Cir.
2010) ("we
now
hold
the
that
conviction
the
date
of
decision is the controlling date");
becomes
the
final
relevant
with Miller v.
for
AEDPA
state-court
Stovall,
608
F.3d 913, 919 (6th Cir. 2010) ("We conclude that when the governing
law changes between a state court's ruling and the date on which a
petitioner's
reviewing
controlled
conviction
the
became
state-court
at
the
time
final,
judgment
his
a
federal
must
apply
state-court
habeas
the
court
law
conviction
that
became
final. ") (internal quotations and ci tation omitted); and Foxworth v.
St. Amand,
570 F.3d 414,
430-32
(1st Cir. 2009) (determining that
the date the conviction became final
cert. denied,
yet
130 S. Ct. 1710
spoken directly on the
(2010).
issue,
is the correct approach),
The Supreme Court has not
and may soon provide needed
guidance as the Court has recently granted certiorari in Greene.
Greene v.
Smith
v.
Fisher,
2011 WL 1225723
Spisak,
130
S.
Ct.
(U.S. Apr.
676,
681
4,
2011); see also
(2010) (noting
"some
uncertainty" about which is the applicable date for purposes of
determining clearly established federal law).
Respondents
rely on Greene.
In Greene,
a
federal
habeas
petitioner wanted to apply the Supreme Court's determination in
11 - OPINION AND ORDER
Gray v. Maryland, 523
The
Gray decision
u.s. 185 (1998) to his case.
was
announced while
the
606 F.3d at 91.
peti tioner' s
direct
appeal was pending with the Pennsylvania Supreme Court and before
his time for petitioning for certiorari elapsed.
court determined that for purposes of
Id.
The Greene
2254 (d) (1), the controlling
§
date for determining what constitutes "clearly established Federal
law" is the "date of the relevant state-court decision."
94-95.
Id. at
Therefore, because Gray had not been determined at the time
of the relevant state court decision,
benefit
from
conviction
Gray,
was
and
an
was
unable
"unreasonable
established Federal law."
the peti tioner could not
to
demonstrate
application ~'
of
that
his
"clearly
Id. at 105-06.
Petitioner argues that to deny him the benefit of Crawford is
contrary to the jurisprudence announced in Griffith v. Kentucky,
479
u.s. 314 (1987).
In Griffith,
the Court discussed that "the
retroactivity analysis for convictions that have become final must
be different from the analysis for convictions that are not final
at the time the new decision is issued."
Brecht v.
Abrahamson,
507
479
u.s. at 321-22; see
u.s. 619, 634 (1993) (noting that new
rules always have retroactive application on direct review,
but
rarely have retroactive application on federal habeas review).
The
Griffith court concluded that "failure to apply a newly declared
consti tutional
rule to criminal cases pending, on direct
violates basic norms of constitutional adjudication."
12 - OPINION AND ORDER
review
Griffith,
479
U.-S.
at
certiorari
322.
Therefore,
because
Griffith's
petition
pending at the time Batson v. Kentucky, 476
wa~
u.s.
for
79
(1986) was issued, it applied to Griffith's conviction.
The Ninth Circuit has yet to definitively address which date
should
be
used
for
established Federal
purposes
law"
of
under
determining
the AEDPA.
what
is
However,
"clearly
the
Ninth
Circuit recently has noted the existing ambiguity about which date
should be used for AEDPA purposes.
Ninth Circui t
In Thompson v.
Runnel,
applied new Supreme Court authority announced in
Missouri v.
Seibert,
542
petitioner's
case
where
u. S.
600
(2004),
Seibert
was
to the federal habeas
announced
before
petitioner's time for petitioning for certiorari elapsed.
1007,
1015
(9th
discussed that
Cir.
2010).
The
the parties did not
Thompson
argue
"clearly established" under the AEDPA,
court
that
uncertainty'
the
621 F.3d
specifically
Seibert was
not
and therefore declined to
address whether Seibert was clearly established Federal law.
at 1016 n.2.
the
Id.
(stating that the Supreme Court has described "'some
surrounding
whether
clearly
established
law
is
assessed by the date the state court conviction becomes final, or
as of the date of the relevant state court decision") (quoting Smith
v. Spisak, 130 S. Ct. at 681).
Moreover, Judge Ikuta filed a dissenting opinion in Thompson,
contending that the appropriate cutoff date should be "the time of
the relevant state court decision."
13 - OPINION AND ORDER
Thompson,
621 F.3d at 1023
("the
Supreme Court
has
never
ignore the statutory command of
held that
a
reviewing
court may
2254(d) and grant habeas relief
§
when the state court's decision was consistent with then-applicable
Supreme Court precedent") (Ikuta, J., dissenting).
v.
Payne,
4 14
peti tioner
F . 3 d -1 02 5 ,
could
have
1034
the
( 9t h
benefi t
of
Ci r .
But see Shardt
2 0 05) (f i n din g
Apprendi
because
that
it
was
announced six months before his case was final).
Other district courts within the Ninth Circuit have used the
date
the
conviction
became
final
as
the
appropriate
date
for
assessing whether Crawford applies to a petitioner's case.
~,
8,
Benjamin v. Prosper, 2010 WL 4630252, *16 n.3 (E.D. Cal. Nov.
2010) (determining
that
because
Crawford
was
petitioner's conviction became final under Caspari,
not apply);
Cal.
Dec.
Clause
Livingston v.
10,
Small,
2009) (applying
claim because
Crawford
2009 WL 4980336,
Crawford
was
to
decided
habeas
before
decided
after
Crawford did
*26 n.8
(C.D.
Confrontation
peti tioner' s
direct review was final on June 28, 2004); James v. Marshall; 2008
WL 4601238, *15
&
n.4
(C.D. Cal. Aug. 13, 2008) (applying Crawford
because Crawford was announced while case on direct review before
conviction became final); Gutierrez v. Yates, 2008 WL 4217865, *12
(C.D. Cal. Apr. 8, 2008), adopted, 2008 WL 4279600 (C.D. Cal. Sept.
11,
2008) (applying
Crawford
when
evaluating
petitioner's
Confrontation Clause claim where petitioner's conviction became
final on April 28, 2004, before Crawford) .
14 - OPINION AND ORDER
In the absence of clear direction from the Supreme Court or
the
Ninth
Circuit,
I
conclude
that
the
appropriate
date
for
determining what is nclearly established Federal law" is the date
the petitioner's conviction becomes final.
Using finality as the
cutoff date provides a bright line and avoids having to assess
which
state
court
decision
retroactivity purposes.
is
the
nrelevant"
decision
for
Additionally, I find that using the date
of finali ty is most consistent with the prinCiples espoused in
Griffith.
Griffith, 479 U.s. at 322.
Accordingly, I conclude that
Crawford applies to petitioner's claim of trial court error that he
asserted on direct review.
Accord Riva v. Kirkland, 315 Fed. Appx.
667, 670 n. 3 (9th Cir. 2009) (not selected for publication) (finding
that
Crawford applied because
Crawford
issued before
his
case
became final on direct review); see also Shaidt, 414 F.3d at 1033
(noting that n[iJf Mr. Shardt's case were still pending on direct
appeal when Blakely was decided, we would be compelled to hold that
Blakely was applicable").
B. Application of Crawford to petitioner's direct review.
Ordinarily a
court's
decision.
Cir.
summary
federal
court
disposi tion
to
n looks
the
through" a
last
reasoned
higher state
state
court
See Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th
2000),
cert.
denied,
534 U.S.
944
(2001).
In the instant
case, the trial court, the Oregon Court of Appeals, and the Oregon
Supreme Court each applied Ohio v.
15 - OPINION AND ORDER
Roberts
on direct
review.
Because of the
intervening change
in the
law,
the
state court
decision is now "contrary to" clearly established Federal law as
determined by the Supreme Court in,Crawford.
See Frantz v. Hazey,
533 F.3d 724, 733-34 (9th Cir. 2008) (concluding that a decision by
a state court is contrary to clearly established law if it applies
a rule that contradicts governing law set forth in Supreme Court
cases);
Price
Accordingly,
v.
Vincent,
538
u.S.
634,
640
(2003) (same).
this court must examine petitioner's Confrontation
Clause 'claim under Crawford de novo.
Frantz,
533 F.3d at 735;
Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008).
The Confrontation Clause of the Sixth Amendment provides that
in criminal cases, the accused has the right to "be confronted with
witnesses against him."
380
u.S.
400,
486
u.S. Const. amend. VI; Pointer v. Texas,
(1965) .
The
"witnesses"
to
which
the
Confrontation Clause applies includes those testifying in court, as
well as certain out-of-court declarants.
596,
599
(9th Cir.),
cert.
denied,
Ponce v. Felker, 606 F.3d
131 S.
Ct.
521
(2010).
The
Crawford Court ruled that the Confrontation Clause "commands, not
that evidence be reliable, but that reliability be assessed in a
particular
manner:
examination."
by
testing
in
the
Crawford, 541 u.S. at 61.
crucible
of
cross-
Thus, Crawford held that
testimonial out of court statements are barred by the Confrontation
Clause, unless the witness is unavailable and the defendant had a
prior
opportuni ty
to
16 - OPINION AND ORDER
cross-examine
the
witness,
regardless
of
whether such statements are deemed reliable by the trial court.
Crawford,
541
statements.
u.s.
The
at
68.
Cra~ford
the Court said that
Crawford applies to all testimonial
opinion did not define
testimonial
~testimonial"
statements must
include
but
~prior
testimony at a preliminary hearing, before a grand jury, or at a
former trial; and to police interrogations."
Crawford, 541
u.s.
at
68.
Later,
in Davis v.
Washington,
the Supreme Court described
that:
Statements are nontestimonial when made in the course of
police interrogation under circumstances objectively
indicating that the primary purpose of the investigation
is to enable police assistance to meet an ongoing
emergency.
They are testimonial when the circumstances
objectively indicate that there is no such ongoing
emergency,
and
that
the
primary purpose
of
the
interrogation is to establish or prove past events
potentially relevant to later criminal prosecution.
547 u.S. 813, 822 (2006).
I
examine whether
D. G. 's
statements to Hakin,
Bri tsch and
Flagor are testimonial.
1.
statements to Trooper Hakin.
With respect to Hakin, it is clear that D.G.'s statements to
him are testimonial in nature,
as they readily constitute police
interrogation as that term is commonly understood.
u.S. at 68.
purpose
of
Crawford, 541
Hakin interviewed D.G. at the patrol office for the
establishing
or
proving
past
facts
potentially relevant to a later prosecution.
17 - OPINION AND ORDER
which
would
be
See State v. Mack,
337
Or.
586,
should not
101 P.3d 349
D. G.' s
(2004).
have been admi tted because
cross-examination.
statements to Hakin
D. G.
was
not
subj ect
to
Consequently, admission of D.G.'s statements to
Hakin violated the Confrontation Clause.
Crawford, 541 U.S. at 68;
Gutierrez, 2008 WL 4217865 at *13.
2.
D.G.'s statements to Dr. Britsch and Ms. Flagor.
The Oregon Supreme Court has concluded that statements given
to
physicians
and
social
testimonial in nature.
workers
during
CARES
400
F.3d
are
State ex. reI Juvenile Dept. of Multnomah
County v. S.P., 346 Or. 592, 626-27,215 P.3d 847
Bordeaux,
interviews
548,
557
(8th
Cir.
(2009); U.S. v.
2005) (finding
forensic
interview of child witness was testimonial, despite that statements
were also for a medical purpose).
that admission of D. G. ' s
Accordingly,
I must conclude
statements to Flagor and Bri tsch and
admission of the CARES videotape violate the Confrontation Clause.
I disagree with respondents' suggestion that the admission of
D.G.'s out of court statements were not an unreasonable application
of Crawford as examined before the Davis decision in 2006.
In this
case, I find that the Oregon Supreme Court's decision in State v.
Mack, is persuasive.
337 Or. at 588.
In Mack, the court readily
found that admission of out of court statements by a child sex
abuse victim to a
testimonial under
Department of Human Services caseworker were
Crawford.
Id.
Moreover, Mack was decided only
a few months after Crawford, without the additional clarification
18 - OPINION AND ORDER
supplied by Davis.
I see no principled distinction between the DHS
worker in Mack and the physician and social worker at issue in the
present
case.
Accordingly,
I
conclude
that
admission
of
the
statements violated the Confrontation Clause under Crawford.
3. Har.mless error analysis.
Confrontation Clause
analysis.
Delaware
errors
v.
Van
are
subj ect
Arsdall,
to
harmless
u.s.
475
error
673,
684
(1986) (Confrontation Clause violations are subject to a harmless
error standard); United States v. Nielsen, 371 F.3d 574, 581 (9th
Cir.
2004) (Crawford violations
standard on direct review).
are
subj ect to a
harmless error
In the habeas context, the court must
consider whether a Confrontation Clause error had a substantial and
injurious effect or influence on the jury's verdict.
Whelchel
V.
Washington, 232 F.3d 1197, 1206 (9th eire 2000).
When assessing the
harmlessness
of
a
Confrontation Clause
violation, courts consider the importance of the testimony, whether
the testimony was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony, the extent of crossexamination
permitted,
prosecution's case.
and
the
Van Arsdall,
overall
strength
of
475 U.S. at 684; Whelchel,
the
232
F.3d at 1206.
Petitioner argues that the admission of D.G.'s statements to
Flagor, Britsch, and Hakin were not harmless, as there was no other
independent
corroborating
19 - OPINION AND ORDER
evidence
to
support
a
conviction.
Petitioner also contends that the overall strength of the state's
case was weak, as evidenced by petitioner's acquittal on several
other counts in the indictment.
Petitioner is correct.
Without D.G.'s out of court statements, the remaining evidence
consisted of the testimony of Sergeant Gourley, petitioner's trial
testimony, and petitioner's two handwritten letters.
I examine
that evidence in turn.
a.
Sergeant
Sergeant Gourley
Gourley,
one
of
the
officers
investigating
the
allegations made by D.G., testified that shortly after petitioner
was taken into custody, petitioner described how he had washed D.G.
in the shower, and tried to do "the appropriate thing."
(Tr. 115.)
Gourley also testified that petitioner stated that D.G. had laid on
the motel bed with her legs' open in an "inviting way" (Tr. 117).
Gourley testified that petitioner said that he had placed his hand
on
D. G. ' s
geni tal area
and applied pressure.
(Tr.
116-117.)
Gourley stated that petitioner told him that petitioner believed
someone
else
had
abused
D. G.,
and
that
peti tioner
wanted
determine how much someone else had sexually abused D. G.
118. )
to
(Tr.
Gourley testified that petitioner described how he then
lowered his face to D.G.'s privates,
and watched to see if D.G.
would react, and when his chin touched D.G., petitioner stated that
he moved his head away.
20 - OPINION AND ORDER
(Tr. 118.)
Gourley also testified that
peti tioner
insisted Gourley obtain a
letter
he
D.G.'s mother explaining the incident at the motel.
had wri tten
to
(Tr. 121-24.)
Gourley also described a second letter written by petitioner
explaining the motel incident that petitioner wrote while in jail.
(Tr. 124.) On cross-examination, Gourley admitted that petitioner
did not state that he placed his hand or finger in D.G.'s vagina,
but that petitioner described putting his hand on the "hump" above
D.G.'s vagina.
b.
(Tr. 127.)
petitioner's testimony
At trial, petitioner testified in his own defense.
Petitioner
admitted that he touched D.G.'s vagina for two seconds to "see if
that membrane was still there" because he strongly suspected that
someone else had sexually abused D.G.
denied using his tongue on D.G.
(Tr. 185-186.)
Petitioner
Although petitioner stated that he
was looking for some kind of reaction from D.G., petitioner denied
that he touched D.G. to arouse himself or D.G. sexually.
(Tr. 188
90.)
c.
petitioner's letters
In one of the letters that petitioner insisted would explain
his actions, petitioner describes the incident in the motel room.
In the letter, petitioner states that D.G.
laid on the bed in an
"invitational way" and that D.G. was "definitely inviting me to do
something."
(Resp.
Ex.
120.)
Petitioner wrote that he applied
pressure on D.G.'s privates and stated that he was being "fatherly
21 - OPINION AND ORDER
minded" and just "trying to find out how far somebody did go with
her."
(Id. )
. Peti tioner wrote that he wondered "how much can a
grown man do with a kid this little."
Petitioner wrote that he
lowered his head, and when his chin touched something, he pulled
away "because it was going in a direction I didn't like."
(Id.)
A second letter written by petitioner contains essentially the same
information.
(Resp.
Ex.
127.)
Both letters were admitted into
evidence at trial.
4.
analysis.
With respect to the Sodomy in the First Degree charge,
the
state was required to establish that petitioner's mouth contacted
D.G.'s genitals.
O.R.S.
§§
163.305, 164.405.
The only evidence to
support the allegation that petitioner licked D. G. 's vagina is
D.G.'s out-of-court statements to Britsch, Flagor and that on the
CARES videotape.
At trial,
petitioner denied that he used his
tongue on D.G., and his letters are devoid of any such admission.
Wi thout
D. G. 's statements to Britsch and Flagor,
and the CARES
videotape, there is insufficient evidence in the record to support
the
Sodomy charge.
Clearly,
admission of
D. G. 's
out
of court
statements had a substantial and injurious effect on the Sodomy
verdict.
Accordingly,
I
Clause error was harmless.
cannot conclude that the Confrontation
Van Arsdall, 475 u.S. at 684; Whelchel,
232 F.3d at 1206; see also Winzer v. Hall, 494 F.3d 1192, 1195 (9th
Cir.
2007) (finding erroneous admission of hearsay statements had
22 - OPINION AND ORDER
substantial and injurious effect on verdict as the hearsay was the
only evidence of element of the crime).
With respect to Unlawful Sexual Penetration charge, the state
was
required to prove
that peti tioner
intentionally penetrated
D.G.'s vagina with an object other than his mouth or penis.
§
163.411.
O.R.S.
At trial, petitioner admitted to briefly touching D.G.
to assess whether her hymen was intact.
However, I conclude that
the state could not have demonstrated proof beyond a reasonable
doubt without D.G.'s out of court statements.
Although I find the
letters written by petitioner to be disturbing, petitioner does not
admit to digital penetration in the letters themselves.
Exs. 120, 127.)
(Resp.
Petitioner also did not admit to penetration in
his statements to Gourley, but said that he placed his hand on the
"hump" above
against
the vagina.
petitioner
petitioner's
was
acquittal
Moreover,
the
comparatively
on
five
other
remainder of the
weak,
as
case
demonstrated
by
Therefore,
I
charges.
conclude that admission of D.G.'s out of court statements had a
substantial
injurious
effect
Unlawful
Sexual
Penetration.
Whelchel,
232 F.3d at 1206.
on
Van
petitioner's
Arsdall,
Accordingly,
475
conviction
U.S.
at
for
684;
I cannot conclude that
the Confrontatiori Clause error was harmless.
In sum, because the state court's rejection of petitioner's
Confrontation Clause
claim was
23 - OPINION AND ORDER
obj ecti vely unreasonable under
Crawford,
and because the error was not harmless,
petitioner is
entitled to habeas corpus relief on ground one.
C.
Application of Crawford to Post-Conviction.
Respondents assert that petitioner's Crawford claim on post
conviction is barred by the state procedural rule which prevents
re-litigation of issues previously raised on direct review.
See
(1984 ),
rev.
Reynolds
denied,
v.
Cupp,
298
Or 597
71
Or.
App.
(1985);
571,
O.R.S.
692
P.2d
648
138.550 (2) .
§
According to
respondents, because petitioner failed to seek certiorari on direct
review, he should not be entitled to assert his Crawford claim on
collateral review.
Petitioner
asserts
applicatio'n of Crawford,
conviction
proceeding
that
he
is
not
seeking
retroactive
but that Crawford applies to his post
because
that
decision
conviction became final on direct review.
issued
before
his
And, petitioner submits
that he could not have raised a Crawford claim on direct review
because that case was not yet in existence, and therefore he is not
precluded from asserting that claim at post-conviction.
Petitioner
is correct.
First, it is not clear that the post-conviction court relied
upon a state procedural rule to deny petitioner's Confrontation
Clause claim.
The PCR court offered no rationale for its denial of
petitioner's claims.
state rule,
Because there was no express invocation of a
I cannot conclude that the PCR court relied upon that
24 - OPINION AND ORDER
basis for rejecting petitioner's PCR claims. 2
See Cone, 129 S. Ct.
at 1780; Coleman, 501 u.S. at 729-30; Valerio v. Crawford, 306 F.3d
742, 773 (9th Cir. 2002), cert. denied, 538 u.S. 994) (finding that
state court must actually rely on state rule to be an adequate
state ground) ..
Second,
peti tioner
correctly
indicates
that
retroacti vi ty
principles do not prevent application of Crawford to his claim on
collateral review.
(1989) .
Teague
See generally Teague v. Lane, 489 u.S. 288, 310
is
a
principle
of
non-retroactivity,
which
"prevents a federal court from granting habeas corpus relief to a
state prisoner based on a rule announced after his conviction and
sentence became
final."
(1994) (emphasis
added).
Caspari v.
Bohlen,
510
u.S.
"A state conviction becomes
383,
389
final
for
purposes of retroactivity analysis when the availability of direct
appeal to the state courts has been exhausted and the time for
filing a petition for a writ of certiorari has elapsed or a timely
21 also am not convinced that O.R.S. § 138.550(2) or Palmer
should be used to bar consideration of petitioner's
constitutional claim.
Oregon courts have suggested that an
intervening change in Constitutional law between petitioner's
direct appeal and post-conviction proceeding does not prevent
consideration of a claim based on the new constitutional
principle where a timely post-conviction proceeding is pursued.
See Long v. Armenakis, 166 Or. App. 94, 101, 999 P.2d 461, rev.
denied, 330 Or. 361 (2000); cf. North v. Cupp, 254 Or. 451, 462,
461 P.2d 271 (1969) (discussing exception to post-conviction
procedural bar where "the right subsequently sought to be
asserted was not generally recognized to be in existence at the
time of trial") .
25 - OPINION AND ORDER
filed petition has been finally denied."
Caspari, 510 u. S. at 390.
See also Whorton v.Bocktino, 549 u.S. 406, 1181 (2007) (defining a
~new
rule" as one that was not dictated by
prec~dent
~'existing
at
the time the defendant's conviction became final''') (quoting Saffle
v.
Parks,
494
u.S.
conviction
was
not
484,
yet
495
final
(1990)).
at
the
Because
time
petitioner's
Crawford
retroacti vi ty principles do not bar this court's
issued,
review of his
Confrontation Clause claim.
Thus, I conclude that Crawford applies to petitioner's postconviction
proceeding.
And,
for
the
reasons
stated
above
concerning petitioner's claim on direct appeal, the state court's
rejection of his Confrontation Clause claim on post-conviction is
objectively unreasonable under Crawford.
is not harmless,
As noted above, the error
and petitioner is entitled to habeas relief on
ground one.
II.
Grounds Two Through Eleven.
Respondents allege that petitioner has failed to sustain his
burden of demonstrating that he is entitled to habeas corpus relief
because petitioner
through eleven.
(9th Cir.
wai ved
I
2006),
issues
fails
to
agree.
cert.
where
discuss
the. merits
of
grounds
two
See Renderos v. Ryan, 469 F.3d 788, 800
denied,
there
was
551
no
u.S.
1159
attempt
to
(2007) (petitioner
set
forth
legal
standards or an attempt to meet them); Silva v. Woodford, 279 F.3d
825,
835
(9th Cir.),
26 - OPINION AND ORDER
cert.
denied,
537
u. S.
942
(2002) (habeas
petitioner bears burden of proof).
In his briefing to this court,
petitioner advises that he "proceeds with Ground One."
Additionally,
satisfied
that
defaulted.
the
court
grounds
Petitioner
two
has
reviewed
through
presented
the
eleven
several
did
not
assert
any grounds
of
ineffective
are
of
assistance of counsel claims to the PCR court.
record
and
is
procedurally
his
ineffective
However, petitioner
assistance
of trial
counselor appellate counsel in his appeal to the Oregon Court of
Appeals or in his petition for review to the Oregon Supreme Court.
Accordingly,
presented.
grounds
two
through , eleven
have
not
been
fairly
Casey v. Moore, 386 F.3d 896, 915-16 (9th Cir. 2004),
cert. denied, 545 u.S. 1146 (2005) (exhaustion requires that habeas
claims be fairly presented to all appropriate state courts at all
appellate stages);
Baldwin v.
Reese,
541 u.S.
27,
24
(2004).
Because the time for presenting grounds two through eleven has long
passed, they are procedurally defaulted.
Coleman, 501 u.S. at 735 n.1.
Casey, 386 F.3d at 920;
Petitioner offers no basis to excuse
his procedural default, or contend that failure to consider grounds
two
through
eleven
will
resul t
in
a
miscarriage
of
justice.
Therefore, habeas relief on grounds two through eleven is denied.
27 - OPINION AND ORDER
CONCLUSION
Based on the foregoing, petitioner's amended petition for writ
of
habeas
corpus
(#5)
is
grounds two through eleven.
the
First
Degree
GRANTED,
ground
one
an
DENIED on
Petitioner's convictions for Sodomy in
and Unlawful
Degree are vacated.
on
Sexual
Penetration
in
the
First
Respondents are ordered to release petitioner
from custody and discharge him from all other adverse consequences
of his conviction unless petitioner is brought to retrial within 90
days of the date of the Judgment herein becomes final,
plus any
additional delay authorized by State law.
IT IS SO ORDERED.
DATED this
;t
day of MAY, 2011.
~~-1:b?~
F.
Malcolm
Marsh
~
United States District Judge
28 - OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?