MICHAEL McSHANE, District Judge.
Petitioner Russel Patrick Borck brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging ineffective assistance of counsel. For the reasons explained below, the petition is denied.
In August 2005, Borck, then 21 years old, was released from prison following a felony conviction for Sexual Abuse III. Not long after, Borck went to his half-sister's home to see his nieces and have dinner. While in prison, Borck sent several letters to his then 11 year old niece J.
Shortly after Borck arrived at the home, he barged unannounced into the room J
Borck returned shortly thereafter. Although the father attempted to get Borck out of the room and attempted to make sure the door remained open, Borck kept returning to the room and closing the door. Once in the room, Borck attempted to take pictures of the girls' buttocks. Borck attempted to pull down the M's pants, exposing the crack at the top of M's buttocks. The girls asked Borck to stop.
Borck then told the girls about his sexual prowess. Borck told the girls he had had sex three times that day with his girlfriend. The girls stated Borck removed condoms from his wallet and told them they would need the condoms later. Borck sat on the bed behind M and, over M's objections, began massaging her shoulders. Borck commented on the girls' breast and bra sizes. Borck told the girls that some girls reached orgasm simply from having their nipples licked. The father heard Borck say "orgasm" and promptly escorted Borck from the home.
The father then asked the girls to separately write down what happened. Essentially, the girls described the conduct mentioned above. The father then called 911. An officer arrived and the girls essentially described the above conduct. Another officer, trained in interviewing children, separately interviewed M and J the next day. The officer then interviewed Borck. Borck did not deny touching M's breast. Instead, he simply stated that he could have touched her breast while they engaged in "horseplay." Borck also admitted discussing orgasms with the girls.
Borck was charged with several counts of Sexual Abuse I and harassment. The first trial ended in a mistrial when witnesses mentioned Borck's earlier time in prison. At the second trial, the jury convicted Borck of three counts of Sexual Abuse I, three counts of Harassment, and three counts of Endangering the Welfare of a Minor. Borck was sentenced to 75 months on each Sex Abuse count, with two counts running consecutive.
The Oregon Court of Appeals affirmed Borck's conviction in a written decision. The Oregon Supreme Court denied review. Borck then filed a petition for post-conviction relief ("PCR"). After a hearing, the court denied relief. The Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review.
Borck then filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Borck raised four grounds for relief, but only one claim, of ineffective assistance of counsel, is at issue here.
ECF No. 25-1, 505-06.
Based on the above testimony, the court granted the state's motion to offer Warner as an expert witness "who can assist the jury in understanding the reactions of a child victim of sex offenses." ECF No. 25-1, 506-07.
The state then asked of Warner:
ECF No. 25-1, 514.
In describing M's description of the incidents, Warner testified:
ECF No. 25-1, 522-23.
Warner concluded many of Borck's actions qualified as "grooming behavior":
ECF No. 25-1, 524.
Warner testified nothing in Ms' interview suggested she presented a memorized story or that someone suggested what to say. Warner testified that had M simply wanted to get Borck in trouble, she would have made the touching seem more intrusive, i.e., would have complained of under the clothes touching of her genitals. ECF No. 25-1, 535.
Borck's attorney did not object to Warner's testimony. As noted, Borck argues the failure to object violated his right to effective assistance of counsel.
Petitioner alleges ineffective assistance of counsel based on trial counsel's failure to object to "vouching" testimony by Warner, the therapist who conducted the assessment of M See Strickland v. Washington, 466 U.S. 668 (1984). The PCR court denied these claims, and respondent maintains that the PCR court's decision is entitled to deference under 28 U.S.C. § 2254(d). See Harrington v. Richter, 562 U.S. 86, 101 (2011) (on habeas review of ineffective assistance claims, a state court decision "must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself").
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" clearly established federal law if it applies incorrect Supreme Court authority or reaches a contrary 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 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); Williams, 529 U.S. at 407-08, 413. "Even if the federal habeas court concludes that the state court decision applied clearly established federal law incorrectly, relief is appropriate only if that application is also objectively unreasonable." Penry v. Johnson, 532 U.S. 782, 793 (2001); see also Early v. Packer, 537 U.S. 3, 11 (2002) (state court decisions that are not "contrary to" Supreme Court precedent may be set aside only "if they are not merely erroneous, but `an unreasonable application' of clearly established federal law, or are based on `an unreasonable determination of the facts'").
Under the well-established Supreme Court precedent of Strickland, 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, 466 U.S. at 687. "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"; it 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).
The parties disagree over the amount of deference this Court owes to the state court PCR determination. In its written decision denying the same vouching arguments Borck makes here, the PCR court concluded:
ECF No. 24-3, 59-61.
Borck argues the state court simply got it wrong:
Sur-Reply, 1-2 (emphasis added).
In other words, Borck challenges the PCR court's application and interpretation of Oregon law. But an error of state law will not justify relief in a federal habeas petition. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("Today, we reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."). The above hurdle would be no hurdle at all if a petitioner could avoid it simply by arguing that rather than interpreting state law, the state PCR court merely "assumed that counsel's incorrect characterization of then-existing [state] law was accurate." The PCR court concluded the trial court would not have entertained an objection to Warner's testimony based on Oregon law at the time. As to Borck's ineffective assistance claim based on that alleged failure to object, the PCR court's determination of that state-law issue bars federal relief based on that alleged error. More importantly, even assuming that the review here is de novo, Borck cannot establish that counsel's failure to object prejudiced him.
Br. in Supp., 2, ECF No. 38.
I disagree. Of course there was no physical evidence corroborating the alleged abuse. This case did not involve a forcible rape. The abuse here was two or three brief gropings of M's clothed breast. Although M may have had a reputation for untruthfulness, her step-mother, who commented on M's reputation for untruthfulness (after being compelled to answer the question), also testified that despite that reputation, she had no reason to doubt M's truthfulness as to the specific allegations of abuse at issue here. And M's accounts of the abuse largely mirrored those of J, the only other witness to the abuse. J did not have a reputation for untruthfulness.
Finally, Warner's testimony was not "key to the state winning it's case." In fact, as noted by both the PCR court and Borck's trial counsel, Warner's testimony was somewhat helpful to Borck given the circumstances. One would think that the prosecution would return at closing to hammer home to the jury any "key" evidence necessary to win the case. But the state did not even mention Warner's alleged "vouching" about M's credibility in its closing arguments.
ECF No. 25-1, 647-649.
Counsel noted Borck was never aroused, never asked the girls to touch him, and never asked the girls to keep anything secret from their parents. Counsel again pointed to Warner's testimony and attempted to contrast that with the girls' allegedly evolving statements. Counsel pointed to Warner's testimony that children could easily be manipulated by adults, perhaps by the father. Only in rebuttal, after the defense raised the issue, did the prosecution point to Warner's testimony that the main allegations of sexual assault victims would tend to remain consistent over time. In contrast to the defense, the state attempted to show the jury that although the surrounding details of the allegations may have evolved, the main details remained consistent.
Borck's stategy at trial corresponds with the affidavit counsel submitted during Borck's PCR proceedings:
ECF No. 24-3, 11-12.
While it is easy to look back in hindsight and argue Borck's attorney erred, this is prohibited when reviewing habeas petitions. Strickland, 466 U.S. at 689 (noting that while it is "all too tempting" to second guess defense cousel following a conviction, "every effort [must] be made to to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time."). Looking at these facts, and the challenges faced by counsel, it is clear Borck's conviction did not result from Warner's testimony.
Borck's own statements to the investigating officer utterly precluded counsel from even attempting to argue that no contact occurred between Borck and M. The prosecution admitted into evidence Borck's statements during a police interview a few days after the incidents at issue. In that interview, Borck admitted: knowing the girls were under 13-years-old; telling the girls that some girls have orgasms when their nipples are stimulated; walking into the bedroom as M changed clothes after showering (but denied seeing anything as the girl was behind a door); telling J her bra "looks kind of small for you" and "I am a good judge of breast size;" ECF No. 25-1, 427-28. Borck did not think he told the girls they would be needing a condom later, denied showing the girls a condom from his wallet, and denied trying to photograph their buttocks. ECF No. 25-1, 428-49. In explaining any contact between himself and the girls, Borck told the officer he wrestled with M and they were involved in "horseplay." ECF No. 25-1, 430. In describing Borck's description of this horseplay, the officer testified:
ECF No. 25-1430.
When asked whether he remembered slapping M on the buttocks, Borck told the officer, "I probably did smack her on the butt while we were messing around." ECF No. 25-1, 431. Borck's statements handcuffed his defense. Rather than argue no contact occurred and both girls were outright liars, counsel was forced to argue any contact was innocent, without any sexual intent. But this argument, that any contact was innocent "horseplay," flew in the face of other evidence. Although there was some evidence of Borck wrestling with a younger girl outside, the breast grabbing occurred inside the house, where there was no evidence any "horseplay" occurred. Additionally, Borck's innocent explanation was contradicted by the sexually charged letters he sent to then 11 year old J.
At closing, the state pounced on those letters. Borck asked the girl, his niece, how far she had gone with boys and whether she was a virgin. Borck told his niece to have her mother buy her a camera so the niece could send Borck photographs of herself in a bikini or a g string. Borck asked his niece what size bra she wore and whether she wore regular panties, thongs, or g strings underwear. Borck asked his niece to take pictures of herself in a bubble bath with bubbles covering her body. In the last letter, Borck tells his niece that maybe they can go camping alone together.
Borck's own letters significantly hindered his defense. Also hindering the defense was the fact that Borck could not take the stand and offer any sort of explanation. As noted, the abuse here occurred shortly after Borck was released from prison following his felony conviction on an earlier sex crime. Borck's counsel simply played with the hand Borck dealt him. Given the letters, Borck's own damaging statements, the relatively consistent testimony of the girls given their ages, and the fact that Borck could not testify in his defense, counsel was forced to emphasize any helpful facts, even if those facts came from the state's own expert witness. In his opening statement, Borck's counsel explained:
Tr., ECF No. 25-1, 333-335.
Counsel pursued this strategy when cross examining J:
ECF No. 25-1, 383-84.
Counsel then asked the following questions of M on cross examination:
ECF No. 25-1, 493-94.
Borck's attorney also contrasted some of the common symptoms Warner testified happen to sexual assault victims against M's actions. For example, Borck's attorney had the stepmother confirm M did not exhibit bed wetting, reversions to more childish behavior, or big personality changes in the months after the incidents. ECF No. 25-1, 568-69.
Borck's attorney also attempted to emphasize the differences in the accounts of the girls from their self-reports written immediately after the incidents contrasted with their comments to the police and, finally, at trial. While some aspects of the testimony remained fairly consistent, some specifics appeared to fall away over time. For instance, although M's written report noted
Borck slapped her rear end as "pay back," she testified at trial that Borck never mentioned anything about "pay back." Other apparent inconsistencies include the exact number of times Borck grabbed, tisted, or cupped M's breasts, and whether Borck used one or two hands on each occassion.
Borck's attorney pursued the only defense available given Borck's criminal history, the damaging letters, and the relatively consistent testimony of the girls. That evidence, not any testimony by Warner, resulted in Borck's conviction. Even assuming a reasonably competent attorney would have objected to Warner's testimony, the failure to do so here did not prejudice Borck.
Petitioner's Petition for Writ of Habeas Corpus (#2) is DENIED and this case is DISMISSED. 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).
IT IS SO ORDERED.
