Brood v. Nooth
Filing
38
OPINION AND ORDER. The Amended Petition for Writ of Habeas Corpus 14 is DENIED, and this case is DISMISSED, with prejudice. In addition, the court finds that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U. S. C. § 2253(c) (2). Accordingly, this case is not appropriate for appellate review. IT IS SO ORDERED. Signed on 7/16/2012 by Judge Robert E. Jones. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
RANDELL R. BROOD,
3 : 09-cv-01431-JO
Petitioner,
v.
OPINION AND ORDER
MARK NOOTH, Superintendent,
Snake River Correctional
Institution,
Respondent.
Kristina S. Hellman
Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
John R. Kroger
Attorney General
Samuel A. Kubernick
Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97301
Attorneys for Respondent
1 - OPINION AND ORDER
JONES , District Judge .
Petitioner
28
U. S . C .
§
brings
2254
in
sentence for sodomy .
this
which
habeas
he
corpus
challenges
action
his
pursuant
convictions
to
and
For the reasons set forth below, the Amended
Petition for Writ of Habeas Corpus [14] is denied , and Judgment is
entered dismissing this action with prejudice.
BACKGROUND
On July 28,
2005, the Douglas County Grand Jury returned an
amended indictment charging petitioner with nine counts of Sodomy
in the First Degree.
Respondent's Exhibit 104 .
Petitioner was
convicted on all counts in a bench trial and the court imposed a
sentence totaling 600 months .
Respondent's Exhibit 101.
Petitioner directly appealed his convictions , but subsequently
moved to voluntarily dismiss his appeal .
Respondent's Exhibit 106.
Petitioner filed for post - conviction relief ( " PCR " ) in state
court .
The PCR trial court denied relief .
County Circuit Court Case No . 07 - 04 - 5775 - P .
Brood v. Hill , Malheur
On appeal , the Oregon
Court of Appeals affirmed the PCR court without written opinion ,
and the Oregon Supreme Court denied review .
Brood v. Hill , 229 Or.
App . 740 , 213 P . 3d 875 (2009) , rev . denied , 347 Or . 258 , 218 P.3d
540
(2009) ; Respondent ' s Exhibits 134 - 138 .
On December 3 , 2009 , petitioner filed this action.
In his
Amended Petition for Writ of Habeas Corpus, he raises the following
grounds for relief :
2 - OPINION AND ORDER
Ground One : Mr . Brood pleads on information , belief, and/or
personal knowledge that his right to due process under the
Fourteenth Amendment to the United States Constitution was
violated when his indictment charged nine identically- worded
counts of sodomy and included no information to differentiate
one count from another.
The indictment thus failed to give
Mr . Brood constitutionally adequate notice of the charges and
failed to protect him against double jeopardy.
Ground Two: Mr . Brood pleads on information, belief, and /o r
personal
knowledge that he did not receive effective
assistance of counsel guaranteed by the Sixth Amendment to
the United States Constitution when trial counsel failed to
object to an indictment that violated the Due Process Clause
of the Fourteenth Amendment to the United States Constitution .
Mr. Brood was prejudiced by counsel 1 s failure because the
indictment, which charged nine identically- worded counts of
sodomy with no way to distinguish between the charges, did not
provide adequate notice of the charges and also deprived Mr .
Brood of the ability to protect himself against double
jeopardy.
Respondent
asks
the
Court
Petition on the basis that :
to
deny
relief
on
the
Amended
(1) Ground One and part of Ground Two
are procedurally defaulted and the default is not excused ;
(2) the
remainder of Ground Two was denied on the merits in a state court
decision entitled to deference ; and (3) all claims lack merit.
DISCUSSION
I.
Exhaustion and Procedural Default
A.
Standards.
A habeas petitioner must exhaust his claims by fairly
presenting them to the state 1 s
highest court ,
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,
3 - OPINION AND ORDER
a petitioner satisfies the
exhaustion requirement by fairly presenting the federal c l aim 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 . '"
Moore 386 F.3d 896,
915 - 916
Hillery , 474 U. S . 254 , 257 ,
(9th Cir . 2004)
(1986) ) .
Casey v .
(quoting Vasquez v .
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 considered , the claims have
not been fairly presented to the state courts and are therefore not
eligible for federal habeas corpus review .
Castille v . Peoples ,
4 89 u. s . 346 , 351 (1989) .
A petitioner is deemed to have " procedurally defaulted " his
claim if he
failed to comply with a
state procedural rule,
failed to raise the claim at the state level at all .
or
Edwards v .
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 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 (1 992) ;
Murray v . Carrier , 477 U. S . 478 , 485 (1 986) .
Ill
Ill
4 - OPINION AND ORDER
B.
Analysis .
Ground One - Amended Indictment Violated Petitioner's Due
Process Rights Because It Did Not Provide Fair Notice to
Per.mit Him to Prepare a Defense
While petitioner concedes his Ground One claim is defaulted,
he contends he can demonstrate cause and prejudice to excuse such
default based on the fact trial counsel rendered constitutionally
ineffective assistance when he failed to make a motion objecting to
the indictment on the same grounds.
Respondent
acknowledges
that
petitioner
raised
several
ineffective assistance of counsel claims during his post conviction
proceedings related to his attorney's handling of the indictment,
including a claim that counsel rendered ineffective assistance when
he failed to object to the indictment on the ground " it was not
specific as to times and dates to allow Petitioner to adequately
defend himself."
Respondent's Exhibit 109 at 5.
Nevertheless ,
respondent suggests the indictment-related ineffective assistance
claims petitioner presented to the Oregon courts were fundamentally
different from the constitutional due process and double jeopardy
claims
set
forth
in
this
federal
habeas
action .
Accordingly,
respondent insists the referenced ineffective assistance of counsel
claim raised during petitioner's state post - conviction proceedings
cannot amount to cause to excuse a procedural default of his Ground
One claim that the indictment violated his rights under the Due
Process and Double Jeopardy clauses .
5 - OPINION AND ORDER
Notably , attorney error that rises to the level of ineffective
assistance of counsel may constitute cause to excuse a procedural
default .
McCleskey v. Zant , 499 U. S. 467 , 494 (1991)
claim of ineffectiveness is itself defaulted,
basis for cause ,
prejudice
with
But if the
it cannot be the
unless the petitioner can establish cause and
respect
to
the
ineffectiveness
claim
itself .
Edwards , 529 U. S . 452 - 54 .
As noted above , respondent argues petitioner did not present
the
PCR court
with an
ineffective
assistance
of
counsel
claim
challenging the indictment based on the Constitution ' s due process
and double
denied
jeopardy clauses .
relief
on
all
of
Even assuming he had ,
petitioner ' s
claims
of
that court
ineffective
assistance of counsel , including those related to counsel ' s failure
to
object
to
the
indictment .
Accordingly ,
petitioner
cannot
establish that ineffective assistance of counsel amounts to " cause
and prejudice " to excuse his default of the Ground One claim unless
he
can
show
the
PCR
court ' s
adjudication
of
the
ineffective
assistance claim was contrary to or an unreasonable application of
Strickland v . Washington ,
466 U. S .
668
(1984).
For the reasons
discussed below , the Court finds petitioner has failed to make this
showing , and thus cannot establish cause and prejudice to excuse
his default of his Ground One claim .
Ill
Ill
6 - OPINION AND ORDER
II.
Merits
A.
Standards .
An application for writ of habeas corpus shall not be granted
unless adjudication of the claim in state court
resulted in a
(1) "contrary to, or involved an unreasonable
decision that was:
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."
A
state
court ' s
petitioner
bears
correctness
by
findings
the
of
burden
clear
and
fact
of
28
u.s.c .
are
presumed
rebutting
the
convincing
2254(d).
§
correct
and
presumption
evidence.
28
u. s.c .
of
§
2254(e)(l) .
A
state
court
decision
established 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 indistinguishable from a decision of [the Supreme] Court
and
nevertheless
precedent. "
arrives
at
a
result
.W "l'-1 i"-"a ms'------',____,_.---"'""a -y-'1 ,
!. !-"' "' "=-= ,_,_,_,_" v
i'
T " '- =-o=r
different
5 2 9 U. S .
3 62 ,
from
[that]
40 5- 06
( 2000) .
Under the " unreasonable application " clause , a federal habeas court
may grant relief " if the state court identifies the correct legal
principle from [the Supreme Court ' s] decisions , but unreasonably
applies
that
principle
to
7 - OPINION AND ORDER
the
facts
of
the
prisoner ' s
case."
Id.
at 413 .
state
court
Id . at 410 .
The " unreasonable application" clause requires the
decision
to
be
more
than
or
erroneous .
The state court's application of clearly established
law must be objectively unreasonable .
B.
incorrect
Id . at 409.
Analysis .
Ground Two :
Ineffective Assistance of Counsel for
Failing to Object to the Indictment on the Basis It Did
Not Provide Adequate Notice of the Charaes and Prevented
Petitioner From Protecting Himself From Double Jeopardy.
With respect to petitioner's ineffective assistance of counsel
claim related to counsel ' s failure to object to the indictment for
lack of adequate
not~ce,
the PCR trial court had before it a sworn
affidavit from petitioner ' s trial counsel wherein counsel averred
as follows:
1.
Petitioner alleges I was ineffective in failing to file
a motion for discovery .
I did not file a motion for
discovery in this case because the Douglas County
District Attorney Office automatically provides discovery
after a case is appointed . The rules require that before
a motion for discovery is filed , the parties make a good
faith effort to resolve the matter . Since the state gave
me all the discovery , I had no reason to file a motion.
In my recollection of the case and after a review of the
notes in my file, I do not believe there was any kind of
discovery problem in this case.
* * *
13 .
Petitioner alleges that I was ineffective in failing to
object to the indictment as it was not specific as to
times and dates to allow petitioner to adequately defend
himself .
Although the indictment was broad ,
the
discovery left no question as to what the counts were
based upon.
Therefore there was no basis to object to
the indictment.
8 - OPINION AND ORDER
Respondent ' s
Exhibit 12 5 at 1
&
Moreover ,
5.
on the issue of
credibility , the PCR trial court specifically held that :
all you have to do is read the deposition to prove that
[petitioner] has absolutely no credibility in this case .
He claims he lied in the videotape the court -- the
police made . He claims to have lied in the letter to his
wife .
He claims to have lied on the stand , and now he
wants to be credible . Not possible .
Respondent ' s Exhibit 132 at 13 .
"Oregon
criminal
courts
offense
do
not
with
require
great
an
indictment
specificity,
to
relying
charge
instead
a
on
discovery ' to inform the defendant of the details of the alleged
crime that are necessary to be able to defend against the charge .'"
State
v.
Anderson ,
omitted ) .
233
Furthermore ,
offense of sodomy .
Or . App .
475
(2010) (internal
citations
time is not an essential element of the
See State v . Wimber,
315 Or. 103 (1992 ) ; ORS
163 . 405.
Here,
the
prosecution
turned
over
the
following
pretrial
(1) a copy of the police report wherein the reporting
discovery:
officer summarized the pretext phone call between petitioner and
the victim,
as well as,
victim and petitioner ;
(3 )
a
taped
her individual interviews with both the
(2)
interview of
incidents of abuse.
a tape of the pretext phone call ; and
the
victim wherein
he
described
the
Significantly , as noted in the police report,
petitioner admitted that he had sexually abused the victim.
He
specifically admitted that he had put his mouth on the victim ' s
penis
5-8
times ,
that
the
9 - OPINION AND ORDER
victim
had
put
his
penis
in
the
petitioner ' s anus once , and that petitioner had put his finger in
the victim ' s anus once.
In addition , petitioner generally agreed
that the abuse had occurred when the victim was
through sixth grades.
Respondent ' s Exhibit at 3- 4 .
in the
fourth
Based on this
discovery , petitioner cannot credibly contend that he was surprised
by the evidence the prosecutor presented against him at trial .
Moreover , the Court finds petitioner ' s reliance on Valentine
v.
Konteh ,
Petitioner
395
F . 3d
contends
626 ,
631
Valentine
(6th
Cir .
supports
2005)
his
is
argument
misplaced .
that
the
indictment in his case , charging nine identically-worded counts of
sodomy , violated his Constitutional right to due process by failing
to distinguish among the counts .
However , in acknowledging " the
reality of situations where young child victims are involved" , the
court in Valentine held:
The problem in this case is not the fact the prosecution
did not provide the defendant with exact times and
places.
If there had been singu l ar counts of each
offense , the lack of particularity would not have
presented the same problem . Instead , the problem is that
within each set of 20 counts , there are absolutely no
distinctions made .
Valentine was prosecuted for two
criminal acts that occurred twenty times each , rather
than forty separate criminal acts . In its charges and in
its evidence before the jury, the prosecution did not
attempt to lay out the factual bases of forty separate
incidents that took place .
Instead , the 8 - year - old
victim described " typical " abusive behavior by Valentine
and then testified that the " typical " abuse occurred
twenty or fifteen times .
Outside of the victim ' s
estimate , no evidence as to the number of incidents was
presented.
Id .
a~
632 - 33 (emphasis added) .
10 - OPINION AND ORDER
In
stark
contrast
identically- worded
petitioner ' s
to
Valentine ,
the
facts
underlying
the
alleged
in
the
indictment
in
charges
case were disclosed to petitioner during discovery
such that his attorney was left with "no question as to what the
counts
were
based
Respondent ' s
upon . "
Exhibit
125
at
5.
In addition , the trial court , sitting as fact finder , meticulously
identified nine unique incidents of abuse related to each of the
counts charged in the indictment .
132
&
204 - 208 .
It
found
that
Respondent ' s Exhibit 105 at 127 the
victim had
" described each
incident with sufficient detail to tell me where it occurred , the
incident , and how it occurred , the sequence of what occurred, and
described
things
that
gave
us
time
frames
and
surroundings such as the truck and the wood stove.
clothing
or
All of these
things are done in sufficient detail -- the Summer Olympics .
All
of these things are done in such -- sufficient detail that I find
[the victim] is credible ."
Id . at 207 .
Finally , the Court is persuaded by respondent ' s argument that
had
counsel
objected
to
the
indictment ,
the
State
could
have
amended the indictment with information it had in its possession to
identify the unique instances of abuse.
As such , petitioner cannot
demonstrate he was prejudiced by any failure on counse l' s par t to
object to the indictment .
Accordingly ,
to
the
extent
petitioner's
Ground
Two
ineffective assistance of counsel claim was fairly presented to the
11 - OPINION AND ORDER
Oregon
courts ,
this
Court
cannot
conclude
that
the
PCR
trial
court's denial of relief on that claim was contrary to, or involved
an unreasonable application of Strickland v. Washington, 466 U. S .
668
(1984) . 1
CONCLUSION
For these reas ons ,
the Amended Petition for Writ of Habeas
Corpus [14] is DENIED, and this case is DISMISSED, with prejudice .
In
addition ,
substantial
the
court
showing
of
finds
the
that
denial
pursuant to 28 U. S . C . § 2253(c) (2) .
petitioner
of
a
has
not
constitutional
made
a
right
Accordingly, this case is not
appropriate for appellate review .
IT IS SO ORDERED .
DATED this
I /Jj
day of July, 2012.
. Jones
States District Judge
Based on the Court's careful review of the record , it would
reach the same conclusion even under de novo review of the subject
ineffective assistance of counsel claim .
12 - OPINION AND ORDER
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