Graybill v. Cain
Filing
41
OPINION AND ORDER: The Petition for Writ of Habeas Corpus 1 is DENIED, and this proceeding is DISMISSED, with prejudice. Petitioner has not made a substantial showing of the denial of a constitutional right, and therefore this Court DENIES a Certificate of Appealability. See 28 U.S.C. § 2253(c)(2). Signed on 5/20/2020 by Judge Karin J. Immergut. (dsg)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DANIEL G. GRAYBILL,
Case No. 3:18-cv-00127-IM
Petitioner,
OPINION AND ORDER
v.
BRAD CAIN, Superintendent, Snake River
Correctional Institution,
Respondent.
IMMERGUT, District Judge.
Petitioner Daniel G. Graybill (“Petitioner”), an individual in custody at Snake River
Correctional Institution, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For
the reasons that follow, Petitioner’s Habeas Petition (ECF No. 1) is DENIED, and this proceeding
is DISMISSED, with prejudice.
BACKGROUND
On February 9, 2011, a Lane County grand jury returned an indictment charging Petitioner
with one count of Sodomy in the First Degree. Resp’t Exs., (ECF No. 19), Ex. 102. The indictment
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alleged that Petitioner sexually abused his daughter, KG, on one occasion between September
2009 and December 2010. Id. Trial commenced before a jury on May 26, 2011. Resp’t Exs. 103–
06.
I.
The State’s Case at Trial
The foundation of the State’s case against Petitioner was the testimony of KG, who was
seven at the time of trial. Tr. 32. KG testified that in the Fall or Winter of 2009, Petitioner pulled
her pants down and “licked [her] private” where she goes “pee.” Tr. 32, 44–47. KG testified that
it happened only once, and that Petitioner told her not to tell her mother. Tr. 44, 45.
KG’s mother, Tina Graybill (“Graybill”), testified that she was in the car with KG on
November 30, 2010 when KG spontaneously announced that “Dad did something really gross a
long time ago and he told me not to tell you.” Tr. 112. KG then stated that Petitioner had “licked
[her] pee-pee.” Tr. 113. Graybill testified that she remained calm and further questioned KG:
I went in the back seat with her and I sat and talked with her and I just said, “Has
this happened before? Has he ever taken your clothes off before?” And she did
tell me about him pulling her pants off and that he pulls her pants off and tickles
her legs, and he thinks it’s funny.
Tr. 113. Graybill reported KG’s disclosure to the police and the Child Welfare Division of the
Oregon Department of Human Services. Tr. 116–18, 146–47.
Forensic interviewer, Nichole Satterwhite (“Satterwhite”), interviewed KG at Kids’
FIRST, a child advocacy center. Tr. 82–83, 100. Satterwhite testified to the specific techniques
used when interviewing a young child, emphasizing that open-ended questions elicit the most
accurate information from children. Tr. 89–90, 96. Satterwhite explained that leading questions
may result in the child’s acquiescence to an adult’s authority, or in a child’s adoption of an adult’s
statements as his or her own. Tr. 89–90. The prosecutor then played a video of Satterwhite’s
interview with KG, in which KG repeated the allegation of abuse. Tr. 100–03.
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II.
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The Defense Theory at Trial
The defense pursued the theory that KG had formed a “genuine mistaken belief” that
Petitioner had abused her. The defense presented the expert testimony of Dr. Phillip Esplin
(“Esplin”), a forensic psychologist with a primary focus on child memory development. Tr. 162.
Esplin testified that children within KG’s age range tend to “have some difficulties with what’s
called source monitoring, remembering why it is that they believe something to be true.” Tr. 165.
Esplin testified that evaluating the credibility of a child who is genuinely mistaken in his or her
belief is difficult, if not impossible, because “they believe what they’re telling you.” Tr. 169. On
cross examination, Esplin specified that “tag questions” — such as “He touched your pee-pee,
didn’t he?” — should not be used when interviewing a child because such questions are coercive
and “tell[] the child you already believe that you know what happened.” Tr. 203–04.
The defense pointed to several sources of potential confusion or outside influence on KG,
including ongoing marital issues between Graybill and Petitioner and Petitioner’s alcohol
consumption. Tr. 137–38, 253. Arguments also arose about the family’s finances and whether
Graybill was communicating with third parties outside of the marriage. Tr. 254. According to
Petitioner, such arguments were “[p]retty intense,” and occasionally unfolded within earshot of
KG. Tr. 254.
On cross-examination, defense counsel questioned KG about whether Graybill had
influenced her disclosure:
Q
When you were in the car there, you talking -- in response to the question about -well [the prosecutor] just talked to you about when you were in the car with your
mom and you told her -- or told your mom that your dad had licked your pee-pee.
Remember that conversation?
A
Yeah.
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Q
Okay. Your mom had asked you if your dad had ever licked your pee-pee, didn’t
she?
A
No. I just told her that.
Q
You didn’t -- she didn’t ask you some kind of question like that?
A
No.
Q
Do you remember telling -- remember [the prosecutor] talked about -- well, let me
-- remember [the prosecutor] talking to you about this time you talked to this lady
and a movie film was taken of your conversation with this lady? Remember that?
A
Yeah.
Q
Remember telling the lady at that time that actually mom had asked you a question
about something and then you responded this way?
A
Yeah.
Q
Was that wrong?
A
No. Yeah, I think.
Q
You think it was or --
A
I sort of forgot what you said.
Q
Okay. Do you remember when you talked to the lady that you told the lady that
your mom had asked you a question about your dad and then you in response - - do
you know what “response” means?
A
Yeah, when you answer someone.
Q
Yeah. So in answer to your mom’s question, that then you said a thing about your
dad. You remember telling her that?
A
Yeah.
Q
But now you’re saying it wasn’t a question your mom put to you, huh?
A
Yeah.
Q
So, what you’re saying now is true, that you just said it, without a question from
your mom?
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A
Yeah.
Q
So, is what you told the lady during this movie film, that was wrong then?
A
Yeah.
Q
Why did you say something was wrong to her?
A
I don’t get it.
Q
What?
A
I don’t get it.
Q
Okay. Do you think you said something -- well, if you told the lady during the
interview that was - - a picture was taken -- that your mom had asked you a question,
but --
A
She didn’t.
Tr. 53–55. Graybill denied eliciting KG’s disclosure, but admitted that she may have assessed
previous situations at home by asking, “What was Dad doing?” or “What was going on here?”.
Tr. 128.
The defense presented two potential sources of KG’s sexual knowledge. Petitioner testified
that three days before KG’s disclosure, he engaged in sexual activity with Graybill on the couch
while watching a pornographic film. Tr. 262, 271. Petitioner testified that while performing oral
sex on Graybill, he noticed KG looking down from the top of the stairs in the direction of the
television. Tr. 272–73. Petitioner also testified that KG had been present when her cousin
commented that she had seen a nude construction crew at the County Fair and stated that “‘[t]heir
pee-pees were hanging out.’” Tr. 284–287.
Lastly, the defense presented evidence that KG could have confused harmless tickling for
something more nefarious. Petitioner testified that he frequently tickled KG, particularly on her
thighs, ears, and neck. Tr. 256. Petitioner explained that KG was often wearing “really loose”
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sweatpants when such tickling would occur, and that he would “yank them down” because he
“didn’t want to bruise her.” Tr. 256. On cross-examination, defense counsel discussed the tickling
with KG:
Q
Remember -- well, remember [your parents would] sometimes kind of get their lips
down and kind of (indicating) like this to tickle you?
A
Yeah.
****
Q
What would they call that as far as what you remember?
A
I think a raspberry.
Q
A raspberry, okay. And that would tickle, wouldn’t it?
A
Yeah.
Q
Make you laugh?
A
Yeah.
Q
You got tickled on your neck by that, sometimes on your neck?
A
Yeah.
Q
Sometimes on your tummy?
A
Yeah.
Q
Sometimes on your legs?
A
Yeah.
****
Q
And sometimes your mom or your dad would tickle you, sometimes make a face
and they’d drop your pants and tickle your legs, wouldn’t they?
A
Yeah.
Q
And that was okay, wasn’t it?
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Yeah.
****
Q
When you say that this one time you get licked, your pee-pee, its possible that
you’re mistaken on that and he was just giving you kind of a raspberry. Isn’t that
right? Isn’t it?
A
Sort of.
Tr. 64.
III.
Closing Arguments
During closing argument, the prosecutor recounted the State’s evidence and replayed the
video of KG’s interview with Satterwhite, emphasizing that the interview had been conducted in
a manner “designed to get at exactly what happened to this child.” Tr. 337. In response, defense
counsel argued that the video was “misleading” because KG was “totally mistaken” in her belief
that Petitioner had abused her. Tr. 342. Defense counsel explained:
You know, I can test. I can figure out credibility. You look for cues, you know.
And, you know, things of that sort of thing. You know, they look you in the eye;
they don’t look you in the eye. Defensive, whatever. But you heard from Dr. Esplin
that that is -- you can’t do that. You can’t do that. That’s not an appropriate test
when you’re dealing with somebody who has, for particular scientific reasons,
come to believe what they’re saying is true. It doesn’t work. It doesn’t work.
Tr. 343–44. Defense counsel reviewed the potential sources of confusion in KG’s memory,
arguing that KG had confirmed on cross-examination that she might have confused harmless
tickling with abuse. Tr. 364.
In his rebuttal, the prosecutor addressed the inconsistencies in KG’s testimony:
How did Mr. Jagger ask [KG] questions? Almost every one of his questions, what
were they? Tag leading questions. Right? Everything that he says. “Your mom
told you what to say, didn’t she? She did, didn’t she?” All right. And this great
question that he’s saying you should consider this answer that she gave about
raspberries or licking your pee-pee, right, he goes through all of these questions.
And, remember, we’re high-status adults here, right. You put a six-year-old, sevenyear-old up on the stand, and make her promise to tell the truth, and there’s a judge
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sitting up there, and people listening to her, and we’re the only ones that get to talk
to her, that makes us high-status adults. More powerful to her than the average
person. And who is the person who is not asking these truth-seeking questions, but
asking what Dr. Esplin calls coercive questions? Who’s asking [KG] coercive
questions? Mr. Jagger. Every one of them, going at her, question after question.
....
Did you learn anything from that, except for how coercive Mr. Jagger can be? No,
you didn’t. Those answers have no ability to get to any truth at all.
Tr. 391–93. The prosecutor also responded to defense counsel’s suggestion that the jury must be
on guard against misleading evidence proffered by the State:
Don’t be misled. All this doubt that Mr. Jagger’s trying to plant in your head is
based off of his coercive questions of [KG]. Who was looking for the truth in this
case? Nichole Satterwhite. Everybody that Tinamarie Graybill called, right?
....
My questions were exactly like the forensic interview questions, just designed to
get to the free recall. That’s all. The only person that wasn’t asking questions from
all the research has told us, from what the expert has told us, the only person that
isn’t asking the questions that are designed to get to the truth was Mr. Jagger. Why?
Something to prove? Something to hide? Concerned about what the truth was
going to come out as? The truth is what matters here, and the process in which we
get to the truth is what matters.
Tr. 393–94. During the State’s rebuttal, defense counsel made two objections, neither of which
concerned the prosecutor’s statements about how the defense questioned KG. Tr. 399, 404–05
The jury convicted Petitioner on the single sodomy charge. Tr. 412; Resp’t Ex. 133. In a
separate proceeding, the trial judge imposed a custodial term of 300 months, followed by lifetime
post-prison supervision. Tr. 412.
IV.
Direct Appeal
Petitioner filed a direct appeal, alleging the trial court erred when it allowed the prosecutor
to vouch for KG’s credibility during closing arguments, when it failed to sua sponte grant a mistrial
or give a curative instruction to remedy the prosecutor’s vouching, and by imposing the mandatory
sentence. Resp’t Ex. 107, at 2–3. The Oregon Court of Appeals affirmed the conviction without
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opinion. State v. Graybill, 259 Or. App. 139 (2013). The Oregon Supreme Court denied review.
State v. Graybill, 354 Or. 699 (2014).
V.
State Postconviction Relief Proceedings
Petitioner sought state postconviction relief (“PCR”), alleging five claims of ineffective
assistance of counsel (“IAC”), including trial counsel’s failure to object to the prosecutor’s
vouching during closing arguments. Resp’t Ex. 113, at 4–12. In opposition, the State submitted
an affidavit by trial counsel detailing his lengthy legal career involving “all types and manners of
[criminal] cases, including all manner of sexual abuse cases.” Resp’t Ex. 137 at ¶ 1. With respect
to Petitioner’s claim that trial counsel should have objected to the prosecutor’s vouching during
closing arguments, trial counsel indicated that his objections during the State’s closing should
speak for themselves:
Throughout trial, and including the State’s closing arguments, I had the opportunity
to personally observe the facial expressions, vocal inflections, demeanor, body
language, and all other aspect of witness credibility as each witness testified. I also
had the opportunity to observe the facial expressions, demeanor, and body language
of the trial Judge and the individual jurors both during trial testimony and during
closing arguments. Based on my personal observations, I considered and rejected
other possible objections because my professional assessment was that additional
objections did not have a reasonable likelihood of success, and would not have
made a practical difference in the case even if the objections had been sustained.
Based on my personal observations during [Petitioner’s] trial and my prior
experience before the Lane County court, I had no reason to believe that the court
would have sustained additional defense objections. I also had no reason to believe
that the court would have granted a motion to strike or allowed a limiting
instruction.
Id. at ¶ 3.
The PCR court denied relief on all claims. Resp’t Ex. 139, at 11. After expressing
admiration for trial counsel’s extensive experience representing both the State and defendants in
criminal matters, the PCR court opined that he “was probably just doing what I was mentioning,
not wanting to pop up all the time, because apparently, at other times, there were some objections
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along the same lines.” Id. In a written judgment, the PCR court reiterated that trial counsel’s
failure to object was “a tactical decision . . . which was reasonable under the circumstances.”
Resp’t Ex. 140, at 2.
On January 22, 2018, Petitioner filed a Petition for Writ Habeas Corpus in this Court,
raising two grounds for relief:
Ground One: Trial counsel failed to provide effective assistance in violation of the
Sixth and Fourteenth Amendments to the United States Constitution when he failed
to object to the prosecutor’s argument that improperly punished the petitioner for
exercising his Sixth Amendment right of confrontation and his right to stand trial
and put the state to its burden of proof.
Ground Two: Trial counsel failed to provide effective assistance in violation of
the Sixth and Fourteenth Amendments to the United States Constitution when he
failed to object to misleading comments by the trial court regarding jury
instructions and to seek clarification for the jury.
Pet., at 3. In his supporting brief, Petitioner acknowledges that he has not presented grounds one
and two to any state court. Id. at 4. Respondent moves to deny habeas relief on the basis that both
grounds are procedurally defaulted. Resp. to Pet., ECF No. 17, at 5–7.
DISCUSSION
I.
Petitioner’s First Ground for Relief
In his First Ground for Relief, Petitioner argues that trial counsel provided ineffective
assistance by failing to object to portions of the prosecutor’s rebuttal closing argument that
“underscored the difference in how he and petitioner’s lawyer questioned the complainant . . . in
effect punishing the petitioner for his lawyer’s use of the most common and effective tool of crossexamination, the use of leading questions.” Pet., at 3.
It is undisputed that Petitioner failed to present Ground One in state court prior to initiating
this proceeding. Respondent argues that because Petitioner can longer exhaust this claim under
Oregon law, it is procedurally defaulted. See OR. REV. STAT. § 138.510(3) (setting forth a twoPAGE 10 – OPINION AND ORDER
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year limitation period in which to file for postconviction relief); Or. Rev. Stat § 138.550(3)
(instructing that all grounds for relief must be asserted in the original or amended postconviction
relief petition unless the grounds could not reasonably have been raised). In response, Petitioner
argues that because PCR counsel was ineffective in failing to raise Ground One in state court, his
procedural default should be excused pursuant to Martinez v. Ryan, 566 U.S. 1 (2012). Br. in
Supp., at 11–12.
A habeas petitioner generally must exhaust all remedies available in state court, either on
direct appeal or through collateral proceedings, before a federal court may consider granting
habeas relief. 28 U.S.C. § 2254(b)(1). If the petitioner fails to fairly present his federal claims to
the highest state court, and state procedural rules would now bar their consideration, the claims
are procedurally defaulted. Hurles v. Ryan, 752 F.3d 768, 779–80 (9th Cir. 2014); O’Sullivan v.
Boerckel, 526 U.S. 838, 845, 848 (1999). If an individual in state custody procedurally defaults
his federal claims, habeas relief is precluded absent a showing of cause and prejudice, or if failure
to consider his federal claims would result in a fundamental miscarriage of justice. Hurles, 752
F.3d at 780; Martinez, 566 U.S. at 9–10; Coleman v. Thompson, 501 U.S. 722, 750 (1991).
The ineffective assistance of postconviction counsel generally does not constitute “cause”
to excuse a procedural default. Coleman, 501 U.S. at 752. In Martinez, however, the Supreme
Court recognized a narrow exception to this general rule: “Inadequate assistance of counsel at
initial-review collateral proceedings may establish cause for a prisoner’s procedural default of a
claim of ineffective assistance at trial.” Martinez, 566 U.S. at 9. To establish “cause” sufficient
to excuse a procedural default under Martinez, a petitioner must show that (1) the underlying
ineffective-assistance-of-trial-counsel claim was substantial; (2) counsel at the state collateral
review proceeding was ineffective; (3) the state collateral review proceeding was the initial review
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proceeding for the claim; and (4) state law required the petitioner to first raise the claim in the
initial-review collateral proceeding. Martinez; 566 U.S. at 17–18; Detrich v. Ryan, 740 F.3d 1237,
1244–1245 (9th Cir. 2013).
A.
Initial-Review Proceeding and State Law Requirements
In Oregon, PCR proceedings are the first forum available to review IAC claims. State v.
Robinson, 25 Or. App. 675, 550 P.2d 758 (1976) (holding ineffective-assistance claims are
“properly resolved only in a postconviction proceeding”). Oregon law also requires ineffectiveassistance-of-counsel claims to be raised at a PCR proceeding. Sexton v. Cozner, 679 F.3d 1150,
1159 (9th Cir. 2012) (acknowledging that Oregon requires claims for ineffective assistance to be
raised in a collateral proceeding). Accordingly, Petitioner satisfies the third and fourth prongs of
the Martinez test.
B.
Substantiality and Ineffectiveness Under Strickland v. Washington
To satisfy the first prong of the Martinez test, the underlying IAC claim must be
“substantial” — that is, the petitioner “must demonstrate that the claim has some merit.” Martinez,
566 U.S. at 14. Petitioner argues that his IAC claim is “substantial” because trial counsel failed to
raise an objection to the prosecutor’s rebuttal closing argument disparaging the defense’s crossexamination of KG. Br. in Supp., at 14–16. Petitioner contends that had trial counsel objected, he
would have been “entitled to relief, very likely a mistrial,” or at least a strong curative instruction,
which reasonably could have resulted in a different outcome given the “she-said/he-said” nature
of the case. Id. at 20.
To evaluate whether a claim is “substantial,” the Court applies the two-pronged test set
forth in Strickland v. Washington, 466 U.S. 668 (1984). First, the petitioner must show that
counsel’s performance fell below an objective standard of reasonableness. Id. at 686. Such a
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showing requires the petitioner to overcome a strong presumption the challenged conduct falls
within the “wide range of reasonable professional assistance; that is the [petitioner] must overcome
the presumption that, under the circumstances, the challenged action ‘might be considered sound
trial strategy.’” Id. at 689. The first prong of the Strickland test thus is satisfied only if the
petitioner demonstrates “counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed . . . by the Sixth Amendment.” Id. at 687.
Second, a petitioner must demonstrate prejudice: “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at
694. A “reasonable probability” is “a probability sufficient to undermine confidence in the
outcome.” Id. When the deficient performance alleged is counsel’s failure to raise an objection,
a habeas petitioner must establish that the decision to forego objection fell below an objective
standard of reasonableness, and that if counsel had objected, there is a reasonable probability that
the objection would have been sustained and the outcome of the trial would have been different.
See Juan H. v. Allen, 408 F.3d 1262, 1273–74 (9th Cir. 2005) (noting that counsel is not ineffective
for failing to raise a meritless objection). However, failure to raise an objection during closing
argument generally does not constitute deficient performance. Zapata v. Vasquez, 788 F.3d 1106,
1115 (9th Cir. 2015). Only where counsel remains silent in the face of “egregious” misconduct
does the failure to object during closing argument fall below an objective standard of
reasonableness. Id.; United States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993) (citing
Strickland, 466 U.S. at 669).
Petitioner has failed to demonstrate that trial counsel’s failure to object amounts to
ineffective assistance of counsel. The record does not establish that the prosecutor’s statements
constituted objectionable misconduct. See Zapata, 788 F.3d at 1112 (whether counsel’s failure to
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object to a prosecutor’s remarks during closing argument was deficient turns on whether the
challenged remarks amount to objectionable misconduct). The prosecutor’s statements, when
viewed in the context of closing arguments as a whole, were largely in response to trial counsel’s
arguments that the State’s evidence was misleading because KG was mistaken in her belief.
Drawing on testimony from both experts, the prosecutor argued that the manner in which KG had been
questioned by trial counsel did not comport with the protocols used by forensic interviewers. Such
statements attempted to sow doubt as to the efficacy of the way in which trial counsel questioned KG, and
did not attack trial counsel for merely cross-examining KG.
Moreover, trial counsel anticipated the prosecutor’s challenge concerning the manner in
which he questioned KG and addressed the issue in closing argument. Specifically, trial counsel
clarified that questioning witnesses at trial is “done differently than you might do investigativewise in an interview with a child,” and explained that attorneys generally employ leading questions
on cross-examination, but cannot use leading questions on direct examination. Tr. 345. He also
encouraged the jury to be skeptical of the prosecutor’s timing:
The reason I bring this up is this: Is that -- I’m not criticizing how [the prosecutor]
asked any questions of [Petitioner] or Dr. Esplin, anybody of that nature. It will be
interesting to see if [the prosecutor] criticizes me for leading questions of [KG]
when he stands up again and talks to you if he does. You can’t say anything, but
you can look him in his eye, say “why didn’t you bring that up in your first argument
when Mr. Jagger had a chance to respond?”
Tr. 345–46.
Trial counsel reasonably could conclude that his prior remarks adequately anticipated and
effectively countered the prosecutor’s argument. Furthermore, reasonable trial counsel could have
foregone objection to avoid highlighting the issue further or to avoid irritating the jury. As trial
counsel explained during Petitioner’s PCR proceedings, he considered and ultimately rejected
additional objections during closing argument due to the demeanors of the judge and jury, and the
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apparent likelihood that such objections would have been unsuccessful. Accordingly, Petitioner
has failed to demonstrate that trial counsel’s failure to object during the prosecutor’s rebuttal fell
below an objective standard of reasonableness.
Any possible prejudice was further mitigated by the trial judge’s instructions to the jury that
“the opening statements and closing arguments of the attorneys” did not constitute evidence, and
were “merely intended to help [the jury] understand the evidence” presented. Tr. 7–8. She further
advised that the questions asked of witnesses are not evidence, and could be considered “only to
give meaning to the witness’s answers.” Tr. 8. The jury is presumed to have followed those
instructions. Therefore, based on the victim’s testimony, which was consistent with her prior
disclosure, there is no reasonable probability that the result of the proceeding would have been
different if trial counsel had raised an objection to the prosecutor’s arguments concerning the
manner in which the defense cross-examined KG. See Featherstone v. Estelle, 948 F.2d 1497,
1507 (9th Cir. 1991) (finding counsel’s failure to object to a “manifestly improper” argument at
close did not prejudice the petitioner where other evidence of his guilt was substantial, and the jury
was instructed counsel’s statements were merely argument and not evidence).
Under the circumstances of Petitioner’s case, trial counsel could reasonably have abstained
from objection because the substance of the challenged statements was adequately addressed in
his own closing argument, and because further objection could have placed undue emphasis on the
issue or inflamed the jury. As such, trial counsel’s failure to object to the prosecutor’s comments
concerning the manner in which the defense cross-examined KG was not constitutionally
ineffective. Furthermore, PCR counsel was not constitutionally ineffective in failing to assert such
a claim, particularly in light of the numerous IAC claims PCR counsel did raise. See White v.
Nooth, 770 Fed. App’x 412, 414 (9th Cir. 2019) (noting that in evaluating PCR counsel’s
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performance, the court must “recognize that the ‘process of winnowing out weaker arguments on
appeal and focusing on those more likely to prevail, far from being evidence of incompetence, is
the hallmark of effective . . . advocacy’”).
Accordingly, Petitioner has not established a
“substantial” ineffective assistance of trial counsel claim, and PCR counsel “could not have been
ineffective for failing to raise the ineffective assistance of counsel claim in state court” to excuse
his procedural default under Martinez. See Sexton, 679 F.3d at 1161 (holding PCR counsel could
not have been ineffective for failing to raise IAC claims where trial counsel was not ineffective).
Because Petitioner’s procedural default is not excused, he is not entitled to habeas corpus relief on
his first claim.
II.
Petitioner’s Second Ground for Relief
As previously noted, Petitioner does not address the claims alleged in his Second Ground
for Relief. Additionally, Petitioner does not attempt to refute Respondent’s argument that Ground
two is procedurally defaulted, and that he has not demonstrated cause and prejudice to excuse the
procedural default, or that a fundamental miscarriage of justice would occur if the Court declined
to address Ground Two. Accordingly, this Court denies habeas relief on this ground on the basis
of procedural default and because Petitioner has failed to sustain his burden to demonstrate why
he is entitled to habeas relief. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (the
petitioner carries the burden of proving his case).
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CONCLUSION
Based on the foregoing, the Petition for Writ of Habeas Corpus (ECF No. 1) is DENIED,
and this proceeding is DISMISSED, with prejudice. Petitioner has not made a substantial showing
of the denial of a constitutional right, and therefore this Court DENIES a Certificate of
Appealability. See 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
DATED this 20th day of May, 2020
Karin J. Immergut
United States District Judge
PAGE 17 – OPINION AND ORDER
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