Olmstead v. Premo

Filing 25

OPINION AND ORDER: Petitioner's Motion for Evidentiary Hearing 19 and the Petition for Writ of Habeas Corpus 2 are DENIED and this case is DISMISSED. All other pending motions are denied as moot. A Certificate of Appealability is den ied 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). (See 9 page opinion for more information.) Signed on 8/3/17 by Judge Michael J. McShane. (Mailed copy to petitioner) (dsg)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON

DANNY EDWARD OLMSTEAD,
Petitioner,

Case No. 6:16-cv-00129-MC
OPINION AND ORDER

v.
JEFF PREMO, Superintendent,
Oregon State Penitentiary
Respondent.
____________________________
MCSHANE, District Judge:
Petitioner, an inmate at the Oregon State Penitentiary, filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Petitioner alleges that his trial counsel rendered ineffective
assistance by failing to challenge the admissibility of expert testimony and the sufficiency of the
evidence supporting conviction. Respondent contends petitioner’s claims were denied in a state
court decision that is entitled to deference. For the reasons explained below, the petition is
denied.

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BACKGROUND
In 2007, after trial before the court, petitioner was convicted three counts of first-degree
rape, one count of second-degree rape, five counts of first-degree sexual abuse, and three counts
of first-degree unlawful sexual penetration. Resp’t Ex. 101. Petitioner’s convictions arose from
the sexual abuse of his step-daughter over a period of several years.
Among other evidence, the State presented the testimony of the victim, the testimony of a
physician who diagnosed the victim with sexual abuse, and evidence that petitioner’s DNA
matched sperm cells found on the victim’s underwear and in her genital area. Resp’t Ex. 103 at
14-19, Ex. 105 at 16-21, Ex. 106 at 6-7. Petitioner’s counsel presented the testimony of an expert
and a physician to counter the State’s evidence, and counsel questioned the victim about an
alleged recantation of the allegations and suggested she might have had a motive for lying.
Resp’t Ex. 103 at 25-26, 29, Ex. 106 at 10-14, 16. Petitioner testified on his own behalf and
offered an explanation regarding the presence of his semen in the victim’s underwear. Resp’t Ex.
106 at 20-21.
The trial court found petitioner’s testimony not credible and convicted him on all charges.
Resp’t Ex. 106 at 32-34 (“I, as a finder of the fact, make a specific finding that the defendant lied
under oath, and therefore will disregard his testimony.”). At sentencing, the trial court imposed
consecutive sentences totaling 1050 months’ imprisonment, plus an additional 10 months for a
charge of failure to appear in the first degree. Resp’t Ex. 101, Ex. 107 at 7-8, Ex. 102 at 6. 1
Petitioner directly appealed his convictions and asserted trial court error based on
insufficiency of the evidence. Resp’t Ex. 108, 110. The Oregon Court of Appeals affirmed

1

After his initial arrest in January 2006, petitioner was released on bail and eventually
absconded, failing to appear for trial scheduled in September 2006. Resp’t Ex. 104 at 8-9, 19.
Petitioner subsequently was arrested by the United States Marshals Service.
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without opinion, and the Oregon Supreme Court denied review. Resp’t Exs. 111-12; State v.
Olmstead, 231 Or. App. 254, 218 P.3d 179 (2009), rev. denied, 348 Or. 13, 227 P.3d 1172
(2010). Petitioner subsequently filed a petition for post-conviction relief (PCR) alleging
ineffective assistance of counsel, and the PCR trial court denied the petition. Resp’t Exs. 113-14,
135. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court
denied review. Resp’t Exs. 138-40; Olmstead v. Premo, 274 Or. App. 722, 364 P.3d 755 (2015),
rev. denied, 358 Or. 611, 369 P.3d 386 (2016).
On January 25, 2016, petitioner filed this federal habeas action under 28 U.S.C. § 2254.
DISCUSSION
Petitioner alleges that his trial counsel rendered ineffective assistance by failing to object
to the sufficiency of the evidence and to the testimony of Dr. Larsen, a physician who examined
the victim and diagnosed sexual abuse. Pet. at 4 (ECF No. 2). Petitioner failed to submit any
briefing or argument in support of these claims and has not met his burden of establishing
entitlement to habeas relief. See Mayes v. Premo, 766 F.3d 949, 957 (9th Cir. 2014) (a habeas
petitioner bears the burden of proving his claims). Moreover, the PCR court rejected petitioner’s
ineffective assistance of counsel claims, and the PCR court’s decision is entitled to deference.
A federal court may not grant a habeas petition regarding any claim “adjudicated on the
merits” in state court, unless the state court ruling “was contrary to, or involved an unreasonable
application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). A state court decision is
“contrary to” established federal law if it fails to apply the correct Supreme Court authority, or if
it reaches a different result in a case with facts “materially indistinguishable” from relevant
Supreme Court precedent. Brown v. Payton, 544 U.S. 133, 141 (2005); Williams v. Taylor, 529
U.S. 362, 405-06 (2000). A state court decision is an “unreasonable application” of clearly
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established federal law if the state court identifies the correct legal principle but applies it in an
“objectively unreasonable” manner. Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per
curiam). Essentially, a “state court's determination that a claim lacks merit precludes federal
habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541
U.S. 653, 664 (2004)).
Under well-established Supreme Court precedent, a prisoner alleging ineffective
assistance of counsel must show that 1) “counsel’s performance was deficient,” and 2) counsel’s
“deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984). “Unless a defendant makes both showings, it cannot be said that the conviction . . .
resulted from a breakdown in the adversary process that renders the result unreliable.” Id.
Judicial review of an attorney’s performance under Strickland is “highly deferential” and carries
a “strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance,” which, under the relevant circumstances, “might be considered sound
trial strategy.” Id. at 689 (citation omitted).
As found by the PCR court, petitioner’s trial counsel moved for a “directed verdict of
acquittal” on all charges at the conclusion of the State’s case-in-chief and renewed his
“previously submitted demurrer” to the charges. Resp’t Ex. 135 at 3; see also Resp’t Ex. 106 at
27. The trial court denied the motions, and the PCR court found “sufficient evidence at the time”
to support denial of the motions. Resp’t Ex. 135 at 3. Indeed, in addition to the victim’s detailed
testimony that petitioner repeatedly raped and abused her, the State submitted evidence that
sperm cells discovered on the victim’s underwear and in her genital area matched petitioner’s
DNA. Resp’t Ex. 106 at 6-7. Further, an examining physician, Dr. Larsen, testified that the
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victim – at the age of 12 – had a “completely transected hymen” consistent with sexual abuse.
Resp’t Ex. 105 at 16-18. Thus, the PCR court’s finding of no deficiency of performance or
resulting prejudice was not an unreasonable application of Strickland.
The PCR court likewise found that counsel was not deficient for failing to object to the
testimony of Dr. Larsen. The PCR court rejected petitioner’s argument that Dr. Larsen vouched
for the credibility of the victim and found that Dr. Larsen’s testimony was not improper
“vouching. There was physical evidence [and the doctor was] allowed to discuss [the victim’s]
demeanor, intellect, etc. Never touched on [the victim’s] credibility.” Resp’t Ex. 135 at 2. Again,
the record supports the reasonability of the PCR court’s findings. Dr. Larsen’s testified primarily
and extensively about her physical findings and diagnosis, while briefly noting that the victim’s
statements “were clear, consistent, age appropriate, and embarrassing for her to discuss.” Resp’t
Ex. 105 at 21. The PCR court was not unreasonable in finding that Dr. Larsen was recounting her
observations of the victim’s statements in the context of her examination, and that counsel was
not deficient in failing to object to her testimony.
In sum, the PCR court’s decision was neither contrary to nor an unreasonable application
of Strickland. Accordingly, petitioner’s claims of ineffective assistance of trial counsel are
denied.
Even though petitioner submitted no briefing or argument in support of the claims in his
petition, he nonetheless moves for an evidentiary hearing to “present newly discovered
evidence” and “to develop actual innocence” claims. Pet’r Aff. at 1 (ECF No. 20). Petitioner is
not entitled to an evidentiary hearing unless he can show that the “factual predicate” for his claim
“could not have been previously discovered through the exercise of due diligence” and that such
facts would “establish by clear and convincing evidence that but for constitutional error, no
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reasonable factfinder” would have found him guilty. 28 U.S.C. § 2254(e)(2)(A)(ii),(B).
Petitioner does not make this showing.
Petitioner seemingly presents a free-standing “actual innocence” claim; he does not assert
actual innocence to support or overcome the procedural default of a distinct constitutional
claim. 2 Rather, petitioner asserts that the victim lied about the abuse and submits four witness
affidavits in support of his motion. As an initial matter, it is unsettled whether a petitioner may
bring a free-standing actual innocence claim in a non-capital case. See House v. Bell, 547 U.S.
518, 554-55 (2006); Jones v. Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014). Moreover, three of the
four affidavits presented by petitioner were signed in March 2014 and none contain or reference
“newly discovered” evidence. Notably, petitioner did not present his actual innocence claim or
the affidavits at any time during his PCR proceedings or in his federal habeas proceeding until
now. A new habeas claim raised in 2017 would appear to be untimely and barred by the statute
of limitations because it does not relate back to the claims in the original petition. See 28 U.S.C.
§ 2244(d)(1) (one-year statute of limitations applies to habeas claims); Mayle v. Felix, 545 U.S.
644, 657, 664 (2005). Regardless, petitioner’s evidence does not come close to meeting the
“extraordinarily high” showing necessary to establish a claim of actual innocence, and I need not
decide whether such a claim is cognizable or equitably tolls the statute of limitations. Carriger v.
Stewart, 132 F.3d 463, 476 (9th Cir. 1997).
In support of his motion, petitioner submitted affidavits from four witnesses, including
two fourteen-year-old relatives who provide hearsay statements claiming they heard the victim
2

If a claim is unexhausted or otherwise barred by procedural default, a federal court may
consider the claim only if the petitioner demonstrates cause for the default and actual prejudice,
or if the lack of federal review would result in a “fundamental miscarriage of justice” due to the
petitioner’s actual innocence. Edwards v. Carpenter, 529 U.S. 446, 451(2000); Schlup v. Delo,
513 U.S 298, 327 (1995).
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recant her allegations in 2013. Pet’r Aff. Exs. 1-2. 3 However, post-trial affidavits are
“disfavored” because they are “obtained without the benefit of cross-examination” Herrera v.
Collins, 506 U.S. 390, 417 (1993). Such affidavits are “particularly suspect” when “they consist
of hearsay.” Id. Petitioner’s hearsay affidavits are no exception to this rule and do not remotely
diminish the overwhelming evidence of petitioner’s guilt. As noted above, the victim identified
petitioner as her abuser and provided consistent and detailed testimony of the abuse, petitioner’s
DNA matched sperm cells found in the victim’s genital area and on her underwear, and the
victim’s physical examination was consistent with sexual abuse. Resp’t Ex. 103 at 14-19, Ex.
105 at 5-7, Ex. 106 at 5-6, 31. Furthermore, the State presented evidence that petitioner called his
wife after his arrest and instructed her to destroy sheets and bedding before police officers
arrived, and that petitioner told his pre-trial cellmate that he “would get his wife’s daughter high

3

Petitioner also submitted affidavits of the victim’s maternal grandmother and his exwife. The grandmother’s affidavit contains no recantation statement and does not support actual
innocence. Pet’r Aff. Ex. 3. Likewise, petitioner’s wife merely provides her lay opinion of the
State’s evidence and accuses the prosecutor of threatening her with arrest if she testified in
support of petitioner. Id. Ex. 4. This claim is not new; petitioner raised it in his PCR proceedings
and it was rejected by the PCR court. Resp. Ex. 135at 2-3. As the PCR court found, petitioner’s
wife had been indicted on a charge of tampering with evidence (as a result of destroying
evidence at petitioner’s direction) and was the subject of a no-contact order regarding the victim,
who was her daughter. Resp’t Ex. 131, Ex. 135 at 2. The prosecutor merely reminder petitioner’s
counsel that petitioner’s wife could be held in contempt if she continued to appear at the
courthouse when she knew her daughter was there. Resp’t Ex. 131 at 2, Ex. 134 at 34-35. The
PCR court further questioned whether petitioner’s wife “would have been a good witness for”
him, in light of the tampering charge and the likelihood that she would have invoked the Fifth
Amendment had she been called to testify. Resp’t Ex. 135 at 2-3.
Petitioner also submitted a 2017 e-mail chain purportedly between his ex-wife and a
physician regarding the physician’s willingness to provide an opinion regarding the appearance
of a girl’s vaginal area if subjected to repeated sexual abuse. Pet’r Aff. Ex. 5. The physician did
not render an opinion and stated only that he or she must be paid before providing an opinion.
This email discussion does not remotely suggest actual innocence, and the physician’s opinion
would be highly suspect and barred from review in any event.
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and have sex with her.” 4 Resp’t Ex. 103 at 12, Ex. 104 at 13, 15-19; Ex. 106 at 31-32. In light of
the evidence presented against petitioner, it is unfathomable that “no reasonable factfinder would
have found” petitioner guilty of sexual abuse.
Finally, in his motion petitioner also complains that trial counsel did not obtain expert
testimony to rebut the State’s evidence and that the prosecutor threatened his wife with arrest if
she testified. These claims are not newly discovered; petitioner raised both of these claims in his
PCR petition and they were rejected by the PCR court. Resp’t Ex. 113, Ex. 135. Moreover,
petitioner did not appeal the PCR court’s ruling on these claims, and he can no longer do so. Or.
Rev. Stat. §§ 138.071(1), 138.650(1); Or. R. App. P. 5.45(1) (assignment of errors not raised or
argued are waived). Accordingly, these claims were not fairly presented to Oregon’s highest
court and they are unexhausted and barred by procedural default. 28 U.S.C. § 2254(b)(1)(A) (a
state habeas petitioner must exhaust all available state court remedies before a federal court may
consider granting habeas corpus relief); Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per
curiam) (to meet exhaustion requirement, a petitioner must “fairly present” a federal claim to the
State’s highest court); see also Coleman v. Thompson, 501 U.S. 722, 732, 735 n.1 (1991) (if a
claim was not fairly presented to the state courts and no state remedies remain available, the
claim is barred from federal review through procedural default).

4

Specifically, the State introduced evidence that petitioner telephoned his wife after his
arrest in January 2006 and told her it was “a burn day” and to dispose of sheets and bedding.
Resp’t Ex. 106 at 28. The victim’s stepbrother testified that he helped remove sheets and bedding
from the victim’s and petitioner’s rooms and took them to a burn pile started by petitioner's wife.
Resp’t Ex. 104 at 16-19. When police arrived with a search warrant, they found ashes in the burn
pile and could not locate the bedding described by the victim. Resp’t Ex. 104 at 5-6. According
to the stepbrother, one particular item described by the victim – a Harley Davidson blanket – was
returned to the home by petitioner’s wife a few days after the warrant was served. Resp’t Ex. 103
at 29, Ex. 104 at 19.
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Regardless, as noted by the PCR court, petitioner’s trial counsel retained Dr. Ray
Grimsbo, who testified for the defense and attempted to support petitioner’s theory and challenge
the State’s evidence. Resp’t Ex. 106 at 10-12. And, as the PCR court found, the prosecutor did
not threaten petitioner’s wife with arrest if she testified in support of petitioner at trial. Rather,
petitioner’s wife was barred from contacting the victim, her daughter, and the prosecutor
informed petitioner’s attorney that his wife could be found in contempt if she continued to
appear at the courthouse while the victim was present. Resp’t Ex. 131 at 2, Ex. 134 at 34-35, Ex.
135 at 2.
Accordingly, petitioner fails to meet his burden of showing that he is entitled to habeas
relief or an evidentiary hearing.
CONCLUSION
Petitioner’s Motion for Evidentiary Hearing (ECF No. 19) and the Petition for Writ of
Habeas Corpus (ECF No. 2) are DENIED and this case is DISMISSED. All other pending
motions are denied as moot. A Certificate of Appealability is denied 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).
3rd
DATED this ____ day of August, 2017
.

_____________________________
s/ Michael J. McShane
Michael McShane
United States District Judge

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