ANNA J. BROWN, Senior District Judge.
Petitioner, an inmate at the Oregon State Penitentiary, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Court DENIES the First Amended Petition for Writ of Habeas Corpus (ECF No. 25)
On May 28, 2002, a Multnomah County grand jury indicted Petitioner on two counts each of Sodomy in the First Degree and Sexual Abuse in the First Degree, and six counts of Unlawful Sexual Penetration in the First Degree. The charges arose from Petitioner's sexual acts against his developmentally disabled cousin over the course of a year. In particular, Petitioner, then married and nearly 61 years old, would take his developmentally disabled 46-year-old cousin out to fast food restaurants for lunch and then engage in sexual acts with her in his van. The victim ultimately disclosed the sexual acts to her mother, and Petitioner confessed. Petitioner provided an apology letter to the victim and outlined the nature of the sexual abuse to the investigating officer.
Counsel was appointed to represent Petitioner. After two judicial settlement conferences, and after Petitioner rejected the prosecution's offer of a plea agreement for eight years of imprisonment, the case proceeded to a jury trial. On December 2, 2002, the case was called for trial. At the start of the proceeding, court-appointed counsel alerted the trial judge that Petitioner wanted to retain a different attorney to represent him. Petitioner explained to the trial judge that he had been in touch with the proposed retained counsel "a few months" earlier, but at that time was financially unable to hire him. Now in a different financial position, however, Petitioner wished to retain the private attorney in place of his court-appointed attorney. Following a lengthy colloquy and an in-chambers meeting among the trial judge, counsel, and Petitioner, the trial nevertheless proceeded with court-appointed counsel remaining on the case.
The sole issue at trial was whether the victim was capable of consent under Oregon law. The jury ultimately found Petitioner guilty on all counts by a 10-2 vote. The trial judge imposed consecutive and concurrent sentences totaling 180 months of imprisonment.
Petitioner filed a direct appeal, asserting as error the trial judge's denial of Petitioner's motion for judgment of acquittal on all counts based upon an argument that the victim was capable of consent. The Oregon Court of Appeals issued a written opinion affirming the conviction and sentence. State v. Barteaux, 212 Or.App. 118, 157 P.3d 225 (2007) The Oregon Supreme Court denied a petition for review. State v. Barteaux, 343 Or. 160, 164 P.3d 1161 (2007).
Petitioner then filed a petition for state post-conviction relief ("PCR"). Following an evidentiary hearing, the state PCR trial judge denied relief. On appeal, the Oregon Court of Appeals reversed and remanded the case in light of the United States Supreme Court's then-recent decisions Lafler v. Cooper, 566 U.S. 156 (2012) and Missouri v. Frye, 566 U.S. 134 (2012). Barteaux v. Mills, 250 Or.App. 767, 281 P.3d 661 (2012). The state sought reconsideration, which the Court of Appeals allowed, and the court then adhered to its original opinion. Barteaux v. Mills, 252 Or.App. 313, 286 P.3d 1243 (2012). On remand, the PCR trial court held another evidentiary hearing and again denied relief. Resp. Exh. 146. On appeal, the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Barteaux v. Taylor, 273 Or.App. 820, 362 P.3d 1215 (2015), rev. denied, 358 Or. 550, 368 P.3d 25 (2016).
On May 5, 2016, Petitioner filed a pro se Petition for Writ of Habeas Corpus with this Court. The Court appointed counsel, who filed a First Amended Petition for Writ of Habeas Corpus alleging the following claims for relief:
Respondent argues that Petitioner procedurally defaulted the grounds alleged in Claim I; Claim III; sub-parts A, B, D, and F, of Claim V; Claim VI; and Claim VII. As to Claims II and sub-claim D of Claim V, Respondent argues the state court decisions denying relief on the merits are entitled to deference.
Petitioner concedes he procedurally defaulted the grounds alleged in Claims I, III, and sub-parts A, D, and E of Claim V, but argues the procedural default should be excused. Petitioner also argues that the state court decisions denying relief on Claim II and sub-part D of Claim V are not entitled to deference. Petitioner does not address the remaining claims for relief.
An application for 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 a habeas petition bears the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254 (e)(1).
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 distinguishable 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). Under the "unreasonable application" clause, a federal habeas court may grant relief only "if the state court identifies the correct 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.
"Determining whether a state court's decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court's reasoning." Harrington v. Richter, 562 U.S. 86, 98 (2011). Where a state court's decision is not accompanied by an explanation, "the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Id. Where, however, the highest state court decision on the merits is not accompanied by reasons for its decision but a lower state court's decision is so accompanied, a federal habeas court should "look through" the unexplained decision to the last related state-court decision that provides a relevant rationale, and presume the unexplained decision adopted the same reasoning. Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018)
In Claim II, Petitioner alleges there was insufficient evidence to prove his guilt beyond a reasonable doubt. Specifically, Petitioner alleges the state failed to introduce sufficient evidence to convince a rational juror that the victim was incapable of consent by reason of mental defect. Petitioner argues that the prosecution's expert witness, Dr. Genevieve Arnaut, provided insufficient testimony to support such a finding.
"[E]vidence is sufficient to support a conviction whenever, `after viewing the evidence in light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Parker v. Matthewes, 567 U.S. 37, 43 (2012) (emphasis added) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Cavazos v. Smith, 565 U.S. 1, 6 (2011) This standard "gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319; see also Cavazos, 565 U.S. at 4 (holding that "[i]t is the responsibility of the jury—not the court—to decide what conclusions should be drawn from evidence admitted at trial"); Long v. Johnson, 736 F.3d 891, 896 (9th Cir. 2013) (holding that the court must respect the exclusive province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts), cert. denied, 134 S.Ct. 2843 (2014).
"[A] state-court decision rejecting a sufficiency challenge may not be overturned on federal habeas [review] unless the `decision was objectively unreasonable.'" Parker, 567 U.S. at 43 (quoting Cavazos, 565 U.S. at 4) This Court must resolve doubts about the evidence in favor of the prosecution and examine the state court decisions through the deferential lens of 28 U.S.C. § 2254 (d). See Long, 736 F.3d at 896 (explaining that a habeas court owes a "double dose" of deference when reviewing a state court ruling on sufficiency of the evidence); Gonzales v. Gipson, 701 F.Appx. 558, 559 (9th Cir. 2017) (same). Under this doubly deferential standard, to grant relief a court "must conclude that the state court's determination that a rational jury could have found that there was sufficient evidence of guilt, i.e., that each required element was proven beyond a reasonable doubt, was objectively unreasonable." Boyer v. Belleque, 659 F.3d 957 (9th Cir. 2011).
Each of the ten counts upon which Petitioner was convicted included as an element of the crime that the victim was incapable of consent by reason of mental defect. Under Or. Rev. Stat. § 163. 315(1)(b)," [a] person is considered incapable of consenting to a sexual act if the person is [m] entally defective." "Mentally defective" is defined in Or. Rev. Stat. § 163.305(3) as meaning "that a person suffers from a mental disease or defect that renders the person incapable of appraising the nature of the conduct of the person." As described by the Oregon Supreme Court:
State v. Reed, 339 Or. 239, 249, 118 P.3d 791 (2005).
At trial, the state offered the testimony of medical expert Dr. Genevieve Arnaut to support allegations that the victim was not capable of consent by reason of mental defect. Dr. Arnaut testified that the victim had an IQ of 53, placing her in the bottom 0.1 percent of the population. Dr. Arnaut found the victim had limited vocabulary, difficulty understanding abstract concepts, and limited problem-solving skills. Overall, Dr. Arnaut opined, the victim's communication, daily living, and socialization skills placed her in the bottom 0.3 percent of the population, and that the victim's overall mental age was the equivalent of a six-year-old child. Dr. Arnaut expressed her view on the victim's ability to consent to sexual acts as follows:
The Oregon Court of Appeals found Dr. Arnaut's testimony alone was sufficient to support the jury's verdict. As the Court of Appeals explained:
Barteaux, 212 Or. App. at 122 (quoting Reed, 339 Or. at 244) (alterations in original). The Court of Appeals concluded that "a rational juror could have inferred that [the victim] lacked the capacity to consent from Arnaut's testimony that [the victim's] mental defect prevented her from `understand[ing] . . . how to say no.'" Id.
The Court of Appeals went on to note that, although Arnaut's expert testimony was alone sufficient to support the jury's verdict, the state also introduced evidence of Petitioner's own acknowledgment that he believed the victim lacked the capacity to consent. "Defendant's acknowledgment, based on his interaction with the victim, that she was not capable of consent lends further support to the inference that the victim did not understand that she could choose whether to engage in sexual relations with defendant." Barteaux, 212 Or. App. at 123 (footnote omitted).
Finally, the Oregon Court of Appeals addressed Petitioner's contention that there was evidence from which the jury could have reasonably inferred that the victim was capable of consenting to sexual relations:
Barteaux, 212 Or. App. at 124.
Having carefully reviewed the entire record, this Court concludes the Oregon Court of Appeals' decision was not objectively unreasonable. The Court notes a rational juror reviewing the evidence could easily choose amongst competing inferences and determine that the victim's mental defect rendered her incapable of consenting to sexual contact. That evidence addressed, among other things, the victim's limited vocabulary, difficulty understanding abstract concepts, and limited problem-solving skills placing her in the bottom 0.1 percent of the population with a mental age-equivalency of a six-year-old. The jury was also able to assess the victim's trial testimony rationally and to conclude from their observations of the victim that her limited level of executive functioning and ability to express herself verbally. They heard the victim identify herself as "23" years of age, when in reality she was 46; they heard that she can write her first and last name and a few of her cats' names, but nothing else, and that she does not know how to read; she lives at home with her mother, requires care in her daily living activities, and is subject to a guardianship.
Moreover, the jury heard that Petitioner told a police officer that the victim was mentally challenged and that she could not consent or could consent only "to a degree." On cross-examination, Petitioner agreed that he was the "adult" in the situation, and the victim was the "child."
Finally, as the Oregon Court of Appeals found, Dr. Arnaut's testimony provided a clear nexus between the victim's disability and her incapacity to appraise the nature of the sexual contact. Because of the victim's disability and her familial status with Petitioner, the victim would be unable to consider her options.
Based on the record and viewing the evidence in the light most favorable to the prosecution, the Court finds there was sufficient evidence that any rational trier of fact cou.ld have found the essential elements of the crimes charged against Petitioner. Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992). Accordingly, the state court decision denying relief on this claim was not an unreasonable application of clearly established federal law, and Petitioner is not entitled to habeas relief.
In sub-part C of Ground V, Petitioner alleges trial counsel was ineffective when he failed to adequately advise Petitioner regarding the risks and benefits of rejecting the state's plea offer. Petitioner presented this claim to the state PCR court, which denied relief.
Under well-established Supreme Court precedent, the right to the effective assistance of counsel extends to "the plea-bargaining process," including the decision whether to accept or reject a plea offer. Lafler, 566 U.S. at 162; Frye, 566 U.S. at 145; Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). To establish ineffective assistance, a petitioner must show that "counsel's performance was deficient," and that counsel's "deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1994).
To show deficient performance, a petitioner "must show that counsel's representations fell below an objective standard of reasonableness." Id. at 688. The question is not whether counsel's advice was correct, but "whether that advice was within the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U.S. 759, 771 (1970) To establish prejudice in the context of a plea claim, a petitioner "must show the outcome of the plea process would have been different with competent advice." Lafler, 566 U.S. at 163. Where a petitioner rejects the state's plea offer, "he must show that, but for the ineffective advice of counsel, there is a reasonable probability he would have accepted the plea offer and received a sentence less severe than the sentence imposed." Crawford v. Fleming, 323 F.Supp.3d 1186, 1191 (D. Or. 2018) (citing Lafler, 566 U.S. at 164)
In the PCR proceeding on remand from the Oregon Court of Appeals, Petitioner presented an affidavit stating as follows:
Resp. Exh. 133, p. 6.
The state countered with an affidavit from Petitioner's trial counsel, who stated:
Resp. Exh. 143, pp. 1-2. The state also submitted an affidavit from the prosecutor, who described the settlement conferences before the criminal trial:
Resp. Exh. 116, pp. 1-2.
The PCR trial judge considered and rejected Petitioner's ineffective assistance of counsel claim. At the PCR hearing, the trial judge addressed the claim:
Resp. Exh. 145, pp. 25-27. The PCR judge subsequently entered judgment against Petitioner, explaining his decision as follows:
Resp. Exh. 146, pp. 2-3.
In light of the evidence before the PCR trial court, this Court concludes the decision to deny relief on Petitioner's claim of ineffective assistance of counsel was not contrary to nor an unreasonable application of Strickland. The PCR trial court reasonably concluded that trial counsel did not commit any errors and that, in any event, there was no reasonable probability that the result would have been different. Accordingly, the PCR court's decision is entitled to deference, and Petitioner is not entitled to habeas relief.
As noted, Petitioner concedes he procedurally defaulted the grounds alleged in Claim I, Claim III, and sub-parts A, D, and E of Claim V, but he contends his procedural default should be excused under Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309 (2012). In Martinez, the Supreme Court held that "[i]nadequate assistance of counsel at initial review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance of counsel at trial." Id. at 1351. To satisfy Martinez a habeas petitioner must show the following: (1) the underlying ineffective assistance of counsel claim is substantial; (2) the petitioner had ineffective counsel during the state collateral proceedings; (3) the state collateral proceeding was the initial review proceeding for the claim; and (4) state law required the petitioner to bring the claim in the initial review proceeding. Trevino v. Thaler, 569 us 413, 133 S.Ct. 1911, 1919 (2013).
In Oregon, the state post-conviction procedure is the initial review proceeding for claims of ineffective assistance of trial counsel, and Oregon law requires that ineffective assistance claims be raised at post-conviction. State v. Robinson, 25 Or.App. 675, 550 P.2d 758, 758 (Or. App. 1976) (holding ineffective assistance of counsel claims may only be resolved in a post-conviction proceeding); Sexton v. Cozner, 679 F.3d 1150, 1159 (9th Cir. 2012) (noting Oregon requires ineffective assistance claims to be raised in a collateral proceeding), cert. denied, 133 S.Ct. 863 (2013). The analysis, therefore, centers on prongs one and two.
Under the first Martinez requirement, a petitioner must come forward with facts to demonstrate that his underlying ineffective assistance claim is "substantial," or has "some merit." Martinez, 132 S. Ct. at 1318. To establish a claim is "substantial," a petitioner must generally show that trial counsel rendered deficient performance and that petitioner suffered prejudice as a result of counsel's errors. Finnel v. Belleque, Civ. No. 3:06-cv-00828-BR, 2015 WL 225817, at *3 (D. Or. Jan. 15, 2015) Because the "substantiality" analysis under Martinez is not a merits review, but more akin to whether a certificate of appealability should issue, a habeas petitioner has satisfied the first prong of Martinez if he has shown that the merits of an ineffective assistance claim would be "debatable among jurists of reason" or the issues are deserving of further pursuit. Detrich v. Ryan, 740 F.3d 1237, 1245 (9th Cir. 2013) (en banc) (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)), cert. denied, 134 S.Ct. 2662 (2014). Stated inversely, a claim is "insubstantial" if "it does not have any merit . . . or is wholly without factual support." Martinez, 132 S. Ct. at 1319.
Under the second Martinez prong, a petitioner must show that he either had no counsel on the initial post-conviction review, or that PCR counsel was "ineffective under the standards of Strickland." Id. at 1318. Thus, a petitioner must show that PCR counsel's performance in the initial-review collateral proceeding fell below constitutional standards. Id. at 1319. Not every error by PCR counsel will constitute "cause;" indeed, PCR counsel "is not necessarily ineffective for failing to raise even a nonfrivolous claim." Sexton, 679 F. 3d at 1157. To show prejudice, a petitioner must show that if PCR counsel had not performed deficiently, the result of the PCR proceeding would have been different. Clabourne v. Ryan, 745 F.3d 362, 376-77 (9th Cir. 2014), overruled on other grounds by McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015) This determination "is necessarily connected to the strength of the argument that trial counsel's assistance was ineffective." Id. at 377-78. The court may address either inquiry first, as resolution of one prong may obviate the need to address the other. Martinez, 132 S. Ct. at 1319.
In Claim I, Petitioner alleges the trial court violated his Sixth Amendment right to choice of counsel by denying Petitioner a continuance to retain a different attorney. In Claim III, Petitioner alleged the trial judge violated his due process rights because an element of his charged offenses, that the victim was "incapable of consent by reason of mental defect," is impermissibly vague. Petitioner did not assign either of these claims as error on direct appeal as required under Oregon law.
In sub-part A of Ground V, Petitioner alleges trial counsel failed to adequately assert Petitioner's right to counsel of choice. In his state PCR petition, Petitioner alleged the following claims:
Resp. Exh. 113, p. 15. In his PCR appeal, however, Petitioner did not raise these claims. Consequently, Petitioner's default of the claim alleged in sub-part A of Claim V did not occur at the PCR trial stage, and Martinez is not available to excuse the default. See Martinez, 132 S. Ct. at 1315 (holding the exception does not extend to attorney errors in any proceeding beyond the first occasion the state allows a prisoner to raise a claim of ineffective assistance of trial counsel); Davila, 137 S. Ct. at 2066-67 ( explaining Martinez applies only to initial-review PCR proceedings, and not appeals from such proceedings). Accordingly, Petitioner is not entitled to habeas relief on the claim alleged in sub-part A of Claim V.
Petitioner alleges trial counsel was ineffective in failing to challenge the statutes under which Petitioner was convicted as impermissibly vague. Petitioner argues that "[t]he Oregon Supreme Court's clarification respecting the meaning of `mental defect' leaves that meaning unconstitutionally vague. Specifically, in an effort to clarify what the relevant statute's term `appraising' means, [State v.] Reed holds that `appraisal' must constitute an exercise of judgment and the making of choices based on an understanding of the nature of one's own conduct." Petitioner's Brief in Support, p. 13 (internal citation omitted).
Assuming that the Oregon Supreme Court's decision in Reed rendered the statute impermissibly vague, Petitioner cannot establish that post-conviction counsel was ineffective in failing to assert a claim that trial counsel should have challenged the statute on this basis because Reed was not decided until two years after Petitioner's trial. Post-conviction counsel could reasonably have determined at the time that assigning error to the actions of trial counsel based upon a decision that was not announced until after trial counsel's representation would be meritless. See Williams v. Nooth, 606 Fed. Appx. 380 (9th Cir. 2015) (reasonable PCR counsel would know that the court "does not mandate prescience, only objectively reasonable advice under prevailing professional norms") (citing Sophanthavong v. Palmateer, 378 F.3d 859, 870 (9th Cir. 2004), cert. denied, 136 S.Ct. 1528 (2016) Moreover, the Martinez exception doe not apply to claims of ineffective assistance of appellate counsel. Davila, 137 S. Ct. at 2062-63. Accordingly, Petitioner's procedural default cannot be excused under Martinez because he cannot establish that PCR counsel was ineffective, and Petitioner is not entitled to habeas relief on sub-part D of Claim V.
In sub-part E of Ground V, Petitioner asserts trial and appellate counsel failed to adequately assert and argue that the trial evidence was insufficient to prove guilt beyond a reasonable doubt.
As noted above, Petitioner does not address the remaining claims in his Brief in Support of Amended Petition. Additionally, Petitioner does not attempt to refute Respondent's argument that these claims do not entitle him to habeas corpus relief. Accordingly, Petitioner has not sustained his burden of demonstrating why he is entitled to relief on his unargued claims. See Lampert v. Blodgett, 393 F.3d 943, 970 n. 16 (9th Cir. 2004) (petitioner bears burden of proving his case); Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2003) (same). Nevertheless, the Court has reviewed Petitioner's unargued claims and is satisfied that Petitioner is not entitled to relief on the remaining claims alleged in his Petition for Writ of Habeas Corpus.
For these reasons, the Court DENIES the Amended Petition for Writ of Habeas Corpus (ECF No. 25) and DISMISSES this action. The Court DENIES a certificate of appealability as Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
