Petterson v. Wilson

Filing 54

Findings & Recommendation: Petition for Writ of Habeas Corpus 2254 2 should be denied. Objections to the Findings and Recommendation are due by 6/26/2020. Signed on 6/9/2020 by Magistrate Judge John Jelderks. (Mailed to Pro Se party on 6/9/2020.) (joha)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
SAM L. PETTERSON,
Case No. 6:17-cv-01536-JE
Petitioner,
FINDINGS AND RECOMMENDATION
v.
DAVE WILSON,
Respondent.
Sam L. Petterson
#16262480
Oregon State Correctional Institution
3405 Deer Park Drive SE
Salem, Oregon 97310-9385
Petitioner, Pro Se
Ellen F. Rosenblum, Attorney General
Samuel A. Kubernick, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310

1 – FINDINGS AND RECOMMENDATION

Attorneys for Respondent
JELDERKS, Magistrate Judge.
Petitioner brings this habeas corpus case pursuant to 28
U.S.C.

§

2254

challenging

the

legality

of

his

Marion

County

convictions dated August 5, 2010. For the reasons that follow,
the Petition for Writ of Habeas Corpus (#2) should be denied.
BACKGROUND
In 2010, the Marion County Grand Jury indicted Petitioner
on thirteen counts of Using a Child in a Display of Sexually
Explicit Conduct, six counts of Encouraging Child Abuse in the
First Degree, one count of Unlawful Sexual Penetration in the
First Degree, and one count of Sexual Abuse in the First Degree
for crimes involving Petitioner’s seven-year-old step-daughter.
Respondent’s Exhibit 103. At that time, Petitioner was facing
additional
involve

criminal

his

charges

step-daughter.

in

two

other

In

order

to

cases
resolve

that
all

did

not

charges

against him, Petitioner elected to plead guilty to three counts
of Encouraging Child Sexual Abuse in the First Degree, one count
of Unlawful Sexual Penetration in the First Degree, and one count
of Sexual Abuse in the First Degree in Case No. 10C41447. He
admitted to a violation of his probation which pertained to a
prior Kidnapping conviction in Case No. 05C54338, and pled guilty
to one count of Sexual Assault of an Animal in Case No. 10C42510.
Respondent’s Exhibits 105-107. The State dismissed the remaining
charges, agreed to cap sentencing at 600 months, and the parties

2 – FINDINGS AND RECOMMENDATION

stipulated that Petitioner would be able to argue for a 300-month
sentence.
The trial court accepted Petitioner’s pleas and imposed a
sentence totaling 517 months in prison as well as a lifetime of
post-prison supervision. Respondent did not take a direct appeal,
and

proceeded

to

file

for

post-conviction

relief

(“PCR”)

in

Marion County where the PCR court denied relief on a variety of
ineffective assistance of counsel claims. Respondent’s Exhibit
139. The Oregon Court of Appeals affirmed that decision without
issuing a written opinion, and the Oregon Supreme Court denied
review. Petterson v. Hall, 284 Or. App. 314, 391 P.3d. 1005, rev.
denied, 361 Or. 543, 397 P.3d 33 (2017).
Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on
September 28, 2017. In his Petition for Writ of Habeas Corpus, he
raises

a

single

ground

for

relief

containing

25

sub-claims.

Respondent asks the Court to deny relief on the Petition because:
(1) Petitioner failed to fairly present most of his claims to
Oregon’s state courts, leaving them procedurally defaulted; and
(2) the PCR court’s decision as to Petitioner’s preserved claims
was not objectively unreasonable.
DISCUSSION
I.

Exhaustion and Procedural Default
A

habeas

petitioner

must

exhaust

his

claims

by

fairly

presenting them to the state'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, a petitioner satisfies the
3 – FINDINGS AND RECOMMENDATION

exhaustion requirement by fairly presenting the federal claim to
the appropriate state courts . . . in the manner required by the
state courts, thereby 'affording the state courts a meaningful
opportunity to consider allegations of legal error.'" Casey v.
Moore, 386 F.3d 896, 915-916 (9th Cir. 2004) (quoting Vasquez v.
Hillery, 474 U.S. 254, 257, (1986)).
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 actually considered, the claims have not been fairly
presented to the state courts and are therefore not eligible for
federal habeas corpus review. Edwards v. Carpenter, 529 U.S. 446,
453 (2000); Castille v. Peoples, 489 U.S. 346, 351 (1989). In
this

respect,

defaulted"

a

his

petitioner
claim

if

he

is

deemed

failed

to

to

have

"procedurally

comply

with

a

state

procedural rule, or failed to raise the claim at the state level
at all. 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 (1992); Murray v. Carrier, 477 U.S. 478, 485 (1986).
In

his

PCR

Petition,

Petitioner

raised

a

variety

of

ineffective assistance of counsel claims including many pro se
claims. Respondent’s Exhibit 112. However, in his PCR Appellant’s
Brief, he narrowed his claims considerably to the present just
4 – FINDINGS AND RECOMMENDATION

the following question: “Where a criminal defendant pleads guilty
to

several

sexual

offenses,

would

a

criminal

defense

trial

attorney exercising reasonable professional skill and judgment
obtain a psychosexual evaluation of the defendant in preparation
for sentencing?” Respondent’s Exhibit 140, p. 7. This claim best
corresponds to sub-parts One and Two of the Petition in this
case. Petitioner did not present the Oregon Court of Appeals or
the Oregon Supreme Court with his remaining claims found in subparts three through twenty-five of his Petition. In this respect
Petitioner

failed

to

fairly

present

sub-parts

three

through

twenty-five to Oregon’s state courts, leaving them procedurally
defaulted.
Petitioner does not dispute that his appellate briefing did
not contain sub-parts three through twenty-five, but asks the
Court to excuse his procedural default on several bases. First,
he argues that at the appellate level, he was not able to raise
pro se claims that his attorney did not raise, and

maintains

that he should not be punished by way of procedural default based
upon counsel’s winnowing of the issues without client consent. In
this respect, Petitioner appears to reason that where he could
not

raise

the

claims

he

wished

to

litigate,

there

was

no

available state corrective process to protect his rights. See 28
U.S.C. § 2254(b)(1)(B)(i) (excusing exhaustion in the absence of
state corrective process)
Pursuant to ORAP 5.92(1), Petitioner could have sought leave
to file a supplemental pro se appellant’s brief but he did not
avail himself of this opportunity. Even if he had, and further
5 – FINDINGS AND RECOMMENDATION

assuming the Oregon Court of Appeals had not been receptive to
such a motion, Petitioner could have chosen to proceed pro se in
order

to

present

all

of

his

preferred

claims.

In

short,

Petitioner’s disagreement with his appointed attorney about which
claims to raise during a PCR appeal does not render Oregon’s
state

corrective

process

ineffective

so

as

to

excuse

the

exhaustion requirement.
Petitioner next contends that the Oregon Rules of Appellate
Procedure precluded him from raising the claims he wished because
they forbid briefs from exceeding 10,000 words, and his attorney
used 3,412 words just to argue the claims in sub-parts One and
Two

of

his

Petition

for Writ of Habeas Corpus. He therefore

reasons that it was impossible for him to argue the other twentythree

sub-claims.

Petitioner
confines

of

to

It

raise

Oregon’s

was

the

not

necessarily

remainder

procedural

of

rules

his
but,

impossible

claims
even

for

within
if

it

the
was,

Petitioner could have sought leave to file an overlength brief
(which he did not do).
Petitioner

also

maintains

that

he

was

only

required

to

exhaust his claim, which he identifies as ineffective assistance
of trial counsel, and not the specific arguments underlying that
claim. This argument is unavailing because ineffective assistance
of counsel claims are discrete and must be properly raised in
order to avoid procedural default. Carriger v. Stewart, 971 F.2d
329, 333-34 (9th Cir. 1992), cert. denied, 507 U.S. 992 (1993).
Finally, Petitioner asserts that the Court should excuse his
default because he was the victim of ineffective assistance of
6 – FINDINGS AND RECOMMENDATION

PCR appellate counsel. Inadequate assistance of PCR counsel may
establish

cause

to

excuse

the

default

of

a

substantial

ineffective assistance of trial counsel claim. Martinez v. Ryan,
566 U.S. 1, 4 (2012). However, the holding of Martinez does not
apply

to

claims

involving

the

alleged

errors

of

appellate

counsel, and only applies to the performance of a PCR attorney
during the initial level of collateral review. Davila v. Davis,
137 S.Ct. 2058 (2017). Petitioner is therefore unable to excuse
his default of sub-claims Three through Twenty-Five.
II.

The Merits
A.

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 decision 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 materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different
from [that] precedent." Williams v. Taylor, 529 U.S. 362, 405-06
(2000).

7 – FINDINGS AND RECOMMENDATION

Under the "unreasonable application" clause of § 2254(d)(1),
a

federal

habeas

identifies
Supreme

the

court

may grant relief "if the state court

correct

Court's]

governing

decisions

legal

but

principle

unreasonably

from

[the

applies

that

principle to the facts of the prisoner's case." Id at 413. The
"unreasonable
decision

to

application"
be

more

clause

requires

the

state

court

than incorrect or erroneous. Id at 410.

Twenty-eight U.S.C. § 2254(d) "preserves authority to issue the
writ in cases where there is no possibility fairminded jurists
could disagree that the state court's decision conflicts with
[the

Supreme]

Court's

precedents.

It

goes

no

farther."

Harrington v. Richter, 562 U.S. 86, 102 (2011).
Twenty-eight
“challenge
attempt

the

to

substantial

U.S.C.

substance

show

that

evidence

§

2254(d)(2)
of

those

in

the

the

allows

state

findings
state

a

court’s

were

court

not

petitioner

to

findings

and

supported

by

record.”

Hibbler

v.

Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012). A federal habeas
court cannot overturn a state court decision on factual grounds
“unless

objectively

unreasonable

in

light

of

the

evidence

presented in the state-court proceeding.” Miller-El v. Cockrell,
537 U.S. 322, 340 (2003). This is a “‘daunting standard—one that
will be satisfied in relatively few cases,’ especially because we
must

be

‘particularly

deferential

to

our

state-court

colleagues.’” Hernandez v. Holland, 750 F.3d 843, 857 (9th Cir.
2014) (quoting Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.
2004)).
B.

Analysis

8 – FINDINGS AND RECOMMENDATION

In his remaining claims, Petitioner alleges that his trial
attorney

was

constitutionally

ineffective

when

he

failed

to:

(1) demand that the trial court require Petitioner to submit to a
psychosexual

evaluation

within

30

days

of

his

indictment

as

required by ORS 137.767; and (2) have Petitioner submit to an
independent psychosexual evaluation prior to entry of his plea
and sentencing. In his briefing, Petitioner argues these claims
in combination, and “ focuses here only on whether trial counsel
was ineffective in failing to seek a psychosexual evaluation to
submit

as

mitigating

evidence

for

the

sentencing

court's

consideration before imposing sentence.” Memo in Support (#49),
p. 12.
The Court uses the general two-part test established by the
Supreme

Court

ineffective

to

determine

whether

Petitioner

received

assistance of counsel. Knowles v. Mirzayance, 556

U.S. 111, 122-23 (2009). First, Petitioner must show that his
counsel's

performance

fell

below

an

objective

standard

of

reasonableness. Strickland v. Washington, 466 U.S. 668, 686-87
(1984).

Due

to

the

difficulties

in

evaluating

counsel's

performance, courts must indulge a strong presumption that the
conduct falls within the "wide range of reasonable professional
assistance." Id at 689.
Second, Petitioner must show that his counsel's performance
prejudiced the defense. The appropriate test for prejudice is
whether

Petitioner

can

show

"that

there

is

a

reasonable

probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Id at 694.
9 – FINDINGS AND RECOMMENDATION

A reasonable probability is one which is sufficient to undermine
confidence

in

the

outcome

of

the

trial.

Id

at

696.

When

Strickland's general standard is combined with the standard of
review governing 28 U.S.C. § 2254 habeas corpus cases, the result
is a "doubly deferential judicial review." Mirzayance, 556 U.S.
at 122.
During Petitioner’s sentencing, the trial judge noted that
although there was no psychosexual report in the record, given
her

extensive

duration,

experience

nature,

and

breadth

circumstances

surrounding

that

at

you

are

Respondent’s

with

his

such
of

reports

as

Petitioner’s

crimes

“would

well

as

the

offenses,

the

certainly

suggest

high risk for re-offense in the community.”

Exhibit

109,

p.

18.

During his PCR proceedings,

Petitioner alleged that his trial attorney was ineffective for
failing to obtain a psychosexual evaluation and, had counsel done
so, there is a reasonable probability that he would have received
a

more

favorable

sentence.

To support this claim in his PCR

proceedings, he retained licensed psychologist Dr. Kevin McGovern
who developed a favorable evaluation:
At the time of this assessment, Mr. Petterson
did not appear to be predisposed or prone to
engage in deviant sexual behavior. He was not
clinically immobilized by a sexual disorder,
a major mental illness or a pervasive
personality disorder. It appears that his
aberrant sexual behavior occurred for a very
brief period of time and was confined to one
victim, his step-daughter. At the time of his
sentencing in Marion County approximately
four years ago, he reported that he was [a]
highly motivated candidate to successfully
complete a sexual offender treatment program
10 – FINDINGS AND RECOMMENDATION

after he was released from prison in order to
address his thinking errors that occurred for
a very brief period of time. He reported that
he had a strong desire to change his life and
behave appropriately. Mr. Petterson realized
that he had developed some thinking errors
and dysfunctional behaviors that needed to be
addressed when he was sentenced to prison.
Obviously,
these
thinking
errors
and
imprudent behaviors led to his arrest and
long-term
incarceration.
However,
these
deficiencies could be both addressed and
corrected
through
his
enrollment
and
successful completion of a sex offender
treatment program. Most clinicians would
concur that at the time of his sentencing
that the probability of a re-offense remained
extremely low, close to zero, especially if
he
completed
a
sex
offender
treatment
program. The recidivism rates for adjudicated
sex offenders who successfully complete a sex
offender treatment program are extremely low,
especially if the sexual offenses occur
within a family setting.
Respondent’s Exhibit 123, p. 7.
The

PCR

Petitioner’s

record
trial

also

contained

attorney.

According

a

Declaration

to

counsel,

from

he

and

Petitioner discussed whether to seek a psychosexual evaluation
and

mutually

necessarily

be

“agreed

that

favorable.”

such

an

Respondent’s

evaluation
Exhibit

would
130,

Counsel recounted:
I explained that a psychosexual evaluation
requires the subject to disclose his complete
sexual history to the examiner. I also
explained that the history must be verified,
usually by a full disclosure polygraph, or it
will not be acceptable to the District
Attorney.
I
believe
Mr.
Petterson
was
concerned about what else might be disclosed
(as was I) if he had a psychosexual
evaluation.
11 – FINDINGS AND RECOMMENDATION

p.

not
2.

Id.
In

addition

to

counsel’s

Declaration,

the

State

also

introduced significant evidence that Dr. McGovern’s evaluation
was inherently unreliable. Dr. William W. Davis, a clinical and
forensic psychologist, opined that Dr. McGovern’s report failed
to comply with the guidelines and best practices established by
the

Association

of

Treatment

of

Sexual

Abusers.

Respondent’s

Exhibit 134. Dr. Davis provided specific detail as to exactly why
Dr. McGovern’s report was deficient, including the following:
most of the body of the report contained
information
which
would
normally
be
classified as "self-report" supplied by the
subject of the evaluation. The majority of
the psychological instruments used were also
self-report in nature. There appeared to be
little
effort
made
to
corroborate
the
subject's version of events through other
sources. In several instances data from
police reports including statements by his
spouse and others who were related to the
subject
in
some
way
contradicted
the
subject's version of events. For example, the
subject tried to tell Dr. McGovern that his
wife was drunk and he was trying to keep her
off the road when he assaulted her in 2005.
There was no mention of alcohol in the police
report or his own statement to the arresting
officer.
It was also noted that Dr. McGovern did not
provide a list of corroborative documents in
his report, as is customary.
It was further noted by this evaluator that
Dr. McGovern did not report an effort to
confront
those
contradictions
with
the
subject in an effort to reconcile the data in
official reports with his statements.

12 – FINDINGS AND RECOMMENDATION

The case was presented as a simple incest
case with little attention being given to
other sexually deviant behavior reported,
such as hidden cameras in a family bathroom
going back to a time during a prior
relationship;
orchestrated
and
recorded
sexual contact with a dog by his wife in
which he was reported to have participated as
well; and the dynamics of his behavior in
contacting
several
couples
for
sexual
conversations about "taboo" subjects through
Craigslist; etc.
* * * * *
It is the opinion of this writer, as
demonstrated
above,
that Dr. McGovern's
report
does
depart
from
the
mentioned
authorities. The data and the methodology are
not sufficient to reliably come to the
conclusions which are asserted in the report.
Id at 3-4.
Although Dr. McGovern considered his report to be reliable,
he admitted during his deposition that he: (1) did not review the
photographic

and

video

evidence

that

contradicted

material

portions of what Petitioner claimed occurred with the victim;
(2) had done nothing to verify that what Petitioner was telling
him

was

true;

and

(3) largely reiterated in his report what

Petitioner told him. Respondent’s Exhibit 133, pp. 33-40. Faced
with the totality of this record the PCR court concluded, “not
getting a psychosexual was not inadequate. Based on the readings
of the two psych reports that were prepared for this case, there
is

insufficient

evidence

that

an

evaluation

would

have

been

helpful.” Respondent’s Exhibit 138, pp. 98-99.
Petitioner
established

argues

that

counsel

had

a duty under clearly

federal law to investigate mitigation evidence to

13 – FINDINGS AND RECOMMENDATION

present at sentencing, and that the PCR court’s decision was
objectively
evaluation

unreasonable
might

have

because

convinced

Dr.

the

McGovern’s

trial

judge

favorable

to

impose

a

sentence of less than 517 months, especially where she was of the
opinion that Petitioner was likely to re-offend in the community
when

she

sentenced

him.

In

making

this

argument,

however,

Petitioner overlooks the significant doubt Dr. Davis cast over
Dr. McGovern’s report. The PCR court determined that in light of
the

opinions

expressed

both

by

Dr.

McGovern

and

Dr.

Davis,

Petitioner failed to establish that an evaluation would have been
helpful to him. This was not an unreasonable determination based
upon

the

totality

of

the

record.

Where

Petitioner

failed

to

establish that his counsel’s performance fell below an objective
standard of reasonableness, Petitioner is not entitled to habeas
corpus relief.
CONCLUSION
For the reasons identified above, the Petition for Writ of
Habeas Corpus (#2) should be denied and a judgment should be
entered dismissing this case with prejudice. The Court should
decline 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).
SCHEDULING ORDER
This

Findings

district judge.

and

Recommendation

will

be

referred

to

Objections, if any, are due within 17 days.

a
If

no objections are filed, then the Findings and Recommendation
will go under advisement on that date.
14 – FINDINGS AND RECOMMENDATION

///
///
///
///
///
///
If objections are filed, then a response is due within 14
days after being served with a copy of the objections. When the
response is due or filed, whichever date is earlier, the Findings
and Recommendation will go under advisement.
DATED this

9th

day of June, 2020.
/s/ John Jelderks
_______________________________
John Jelderks
United States Magistrate Judge

15 – FINDINGS AND RECOMMENDATION