Becker v. Seeley
Filing
49
OPINION AND ORDER. The Amended Petition for Writ of Habeas Corpus 17 is 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). IT IS SO ORDERED. Signed on 7/30/2011 by Judge Michael W. Mosman. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
ALAN S. BECKER,
Civil No. 09-6289-MO
Petitioner,
v.
CHUCK SEELEY,
OPINION AND ORDER
Respondent.
Anthony D. Bornstein, Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
John R. Kroger, Attorney General
Jacqueline Kamins, 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 this habeas corpus case pursuant to 28
U.S.C. § 2254 challenging the legality of his underlying state
court conviction from 2003 for Sexual Abuse in the First Degree.
Because petitioner was not denied his constitutional right of
confrontation, the Amended Petition for Writ of Habeas Corpus (#17)
is denied.
BACKGROUND
On January 9, 2002, petitioner was indicted on two counts of
Sexual Abuse in the First Degree and one count of Unlawful Sexual
Penetration
in
the
Second
Degree
involving his 13-year-old niece.
to
trial,
petitioner
sought
stemming
from
an
incident
Respondent’s Exhibit 102.
the
court’s
permission
to
Prior
admit
evidence that the victim had made an allegation of sexual abuse
against a babysitter, claiming the abuse had occurred when she was
between the ages of three and five.1
According to petitioner, the
allegation was false, and the physician who examined the victim at
the time made a finding that no abuse had occurred.
Transcript, p. 2.
Pretrial
The trial judge denied petitioner’s motion
because the evidence was too remote, and its prejudicial value
plainly outweighed its relevance.
1
Id at 10-11.
Although the abuse allegedly occurred when the victim was very young, she did not
disclose it until she was 13 years of age while staying at a psychiatric facility after the allegations
giving rise to the current action had come to light. Pretrial Transcript, p. 4.
2 - OPINION AND ORDER
During the trial, Dr. Susan Pickrel testified that the victim
suffered from post-traumatic stress disorder (“PTSD”) and low-level
depression.
Trial Transcript, p. 83.
According to Dr. Pickrel,
the PTSD was brought on by sexual abuse from a family member.
at 82-84.
Id
At this point, petitioner changed his position on the
victim’s claim of abuse when she was a toddler.
Specifically,
petitioner now claimed that the victim’s prior allegations of abuse
when she was a young child were actually true and it was this
incident that caused her to suffer from PTSD, not any abuse she
claimed to suffer at the hands of petitioner.
therefore
sought
the
court’s
permission
to
Id at 118.
He
cross-examine
Dr.
Pickrel as to the effect of the earlier abuse on Dr. Pickrel’s
diagnosis of PTSD.
Counsel for petitioner noted, “I may be getting the actual
substance of the allegation wrong” and stated, “[the prosecutor]
may actually correct me as to the nature of the statement in the
record with regard to what happened when she was two or three or
four.”
Id at 118.
The prosecutor responded, “The actual note in
the medial report indicates that [the victim] was apparently not
bothered by this and does not remember it.”
Id at 119.
The trial
court denied petitioner’s request to cross-examine Dr. Pickrel on
this issue, finding “that it’s too remote and really not helpful to
the issues.”
Id at 119.
3 - OPINION AND ORDER
The jury ultimately convicted petitioner of one count of
sexual abuse, and the trial court sentenced him to 75 months in
prison.
Respondent’s Exhibit 101, p. 3.
Petitioner moved for a
new trial on the basis that the jury’s verdicts were logically
inconsistent, but the trial court denied the motion.
Respondent’s
Exhibits 119, 120.
Petitioner directly appealed his conviction, and the Oregon
Court of Appeals affirmed the trial court without issuing a written
opinion, and the Oregon Supreme Court denied review.
State v.
Becker, 204 Or. App. 253, 129 P.3d 804, rev. denied 340 Or. 672,
136 P.3d 742 (2006).
Petitioner next filed for post-conviction relief (“PCR”) in
Marion
County
where
the
PCR
Respondent’s Exhibits 125, 126.
trial
court
denied
relief.
The Oregon Court of Appeals
affirmed the lower court without opinion, and the Oregon Supreme
Court denied review.
Becker v. Belleque, 228 Or. App. 367, 208
P.3d 1057, rev. denied 346 Or. 589, 214 P.3d 821 (2009).
Petitioner filed his Amended Petition for Writ of Habeas
Corpus on May 11, 2010 alleging that the State denied him his right
to confrontation under the Sixth and Fourteenth Amendments when the
trial court barred him from cross-examining Dr. Pickrel with
information about the victim’s prior reports that someone besides
petitioner sexually abused her when she was younger.
Respondent
asks the court to deny relief on the Amended Petition because:
4 - OPINION AND ORDER
(1) petitioner failed to fairly present the claim to Oregon’s state
courts, and it is now procedurally defaulted; and (2) the claim
lacks merit. Because petitioner's confrontation claim fails on its
merits, the court declines to decide the exhaustion issue.
See 28
U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus
may be denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of the
state.").
DISCUSSION
I.
Standard of Review
An application for a writ of habeas corpus shall not be
granted unless adjudication of the claim in state court resulted in
a decision that was: (1) "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 evidence
presented in the State court proceeding."
28 U.S.C. § 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.
A
state
court
decision
28 U.S.C. § 2254(e)(1).
is
"contrary
to
.
.
.
clearly
established precedent if the state court 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
5 - OPINION AND ORDER
materially indistinguishable from a decision of [the Supreme] Court
and
nevertheless
precedent."
arrives
at
a
result
different
from
[that]
Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
Under the "unreasonable application" clause, a federal habeas court
may grant
relief
"if the
state
court
identifies
the
correct
governing legal principle from [the Supreme Court's] decisions but
unreasonably applies that principle to the facts of the prisoner's
case."
Id at 413.
The "unreasonable application" clause requires
the state court decision to be more than incorrect or erroneous.
Id at 410.
The state court's application of clearly established
law must be objectively unreasonable.
Id at 409.
When a state court reaches a decision on the merits but
provides no reasoning to support its conclusion, the federal habeas
court must conduct an independent review of the record to determine
whether the state court clearly erred in its application of Supreme
Court law.
Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
In such an instance, although the court independently reviews the
record, it still lends deference to the state court's ultimate
decision.
II.
Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
Analysis
Petitioner
alleges
that
the
trial
court
unreasonably
restricted vital cross-examination of Dr. Pickrel thereby depriving
the defense of its ability to undermine the victim’s credibility.
Petitioner argues that had he been allowed to cross-examine Dr.
6 - OPINION AND ORDER
Pickrel regarding the earlier incident of sexual abuse, he could
have shown the jury that the victim’s PTSD was a pre-existing
condition such that Dr. Pickrel’s diagnosis could not have been
used to buttress the victim’s testimony as to the charges against
him.
In
all
criminal
prosecutions,
the
Sixth
and
Fourteenth
Amendments guarantee the accused the right "to be confronted with
the witnesses against him."
U.S. Const., Amdt. 6; Lilly v.
Virginia, 527 U.S. 116, 123 (1999).
purpose
of
confrontation
is
to
opportunity of cross-examination."
"The main and essential
secure
for
the
opponent
the
Davis v. Alaska, 415 U.S. 308,
315-16 (1974). "[A] criminal defendant states a violation of the
Confrontation
Clause
by
showing
that
he
was
prohibited
from
engaging in otherwise appropriate cross-examination designed . . .
'to expose to the jury the facts from which jurors . . . could
appropriately draw inferences relating to the reliability of the
witness.'"
Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986)
(quoting Davis, 415 U.S. at 318). In evaluating such a claim, this
court is mindful that "[t]rial judges retain wide latitude insofar
as the Confrontation Clause is concerned to impose reasonable
limits on such cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of the issues, the
witness' safety, or interrogation that is repetitive or only
marginally relevant."
Id at 679.
7 - OPINION AND ORDER
Petitioner sought to link Dr. Pickrel’s PTSD diagnosis to the
incident of sexual abuse, thereby showing that the victim’s PTSD
did not necessarily result from the sexual abuse alleged in the
Indictment. However, as petitioner pointed out to the court in his
pretrial motion, the physician who examined the victim at the time
of the incident concluded that was no sign of sexual abuse.
Pretrial Transcript, p. 2.
It was therefore questionable whether
the incident of abuse had actually occurred.
In addition, as mentioned previously in this Opinion, “[t]he
actual note in the medical report indicates that [the victim] was
apparently not bothered by this and does not remember it.”
Transcript, p. 119.
Trial
Indeed, “the allegation came from the mother
rather than the child who was two years old.
The mother is who
reported this and pursued this.” Pretrial Transcript, p. 7. Given
petitioner’s earlier position that no abuse had occurred, the
examining doctor’s finding that no abuse had occurred, and the
contents of the medical report showing that the victim did not
report or remember such an incident and was not bothered by it, the
earlier
allegation
of
abuse
Pickrel’s PTSD diagnosis.
simply
was
not
relevant
to
Dr.
Accordingly, the trial court properly
exercised its broad discretion to impose a reasonable limitation on
petitioner’s cross-examination of Dr. Pickrel.
For these reasons,
assuming petitioner fairly presented this claim to the state
courts, and the court having conducted an independent review of the
8 - OPINION AND ORDER
record, the criminal trial court’s decision to deny relief on
petitioner’s Ground One claim was neither contrary to, nor an
unreasonable application of, clearly established federal law.
CONCLUSION
For the reasons identified above, the Amended Petition for
Writ of Habeas Corpus (#17) is 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).
IT IS SO ORDERED.
DATED this
30th
day of July, 2011.
/s/ Michael W. Mosman
Michael W. Mosman
United States District Judge
9 - OPINION AND ORDER
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