ROBERT E. JONES, District Judge.
Petitioner brings this habeas corpus action pursuant to 28 U.S.C. 2254 in which he challenges his convictions and sentence for rape, unlawful sexual penetration, sexual abuse, assault and burglary. For the reasons set forth below, the Petition for Writ of Habeas Corpus [3] is denied, and Judgment is entered dismissing this action with prejudice.
On November 20, 2002, the Washington County Grand Jury returned an indictment charging petitioner with one count of Rape in the First Degree, two counts of Unlawful Sexual Penetration in the First Degree, two counts of Sexual Abuse in the First Degree, one count of Felony Assault in the Fourth Degree and six counts of Burglary in the First Degree. Respondent's Exhibit 102. Following a bench trial, petitioner was found not guilty on one count of unlawful sexual penetration, one count of sexual abuse and two counts of burglary and was convicted on one count of Rape in the First Degree, one count of Unlawful Sexual Penetration in the First Degree, one count of Sexual Abuse in the First Degree, one count of Felony Assault in the Fourth Degree and two counts of Burglary in the First Degree.
Petitioner directly appealed his convictions, but the Oregon Court of Appeals affirmed the trial court without written opinion, and the Oregon Supreme Court denied review. State v. Holcomb, 202 Or.App. 327 (2005) rev. denied, 339 Or. 701 (2005); Respondent's Exhibits 106-110.
Petitioner filed for post-conviction relief ("PCR") in state court. The PCR trial court granted relief on petitioner's Second Amended Petition for Post-Conviction Relief. Holcomb v. Hill, Malheur County Circuit Court Case No. 06024970M; Respondent's Exhibit 139. On appeal, the Oregon Court of Appeals reversed the PCR court in a written opinion, and the Oregon Supreme Court denied review. Holcomb v. Hill, 235 Or.App. 419 (2010), rev, denied, 349 Or. 370 (2010); Respondent's Exhibits 140-148.
On September 9, 2011, petitioner filed this action. In his Petition for Writ of Habeas Corpus, he raises the following grounds for relief:
Respondent asks the Court to deny relief on the Petition because: (1) Grounds Two and Four are procedurally defaulted and the default is not excused; (2) Grounds One and Three were denied in a state court decision entitled to deference; and (3) all claims are without merit.
Petitioner fails to brief the merits of Grounds Two and Four in his counseled supporting memorandum. The State contends that while petitioner presented a claim of ineffective assistance of counsel for failing to investigate and effectively litigate a motion to suppress petitioner's pre-arrest statements to police (Ground Two claim) to the post-conviction trial court and on appeal to the Oregon Court of Appeals, he failed to present it in either his counseled or pro se petition for review to the Oregon Supreme Court and it is therefore procedurally defaulted. With regard to Ground Four, the State contends; (1) that petitioner failed to fairly present this claim to the Oregon courts in a procedural context in which its merit would be considered; and (2) that any claim of error pertaining to the state post-conviction appellate review process or claim of ineffective assistance of postconviction appellate counsel is not cognizable in this federal habeas corpus proceeding. Response [42] at pp. 10-11.
On federal habeas review, petitioner must show that the state court determination denying his claims was contrary to or an unreasonable application of established Supreme Court precedent. 28 U.S.C. § 2254(d). The Court's review of the record reveals that petitioner failed to fairly present his Grounds Two and Four claims to the Oregon courts in a procedural context in which their merits would be considered. Moreover, petitioner's post-conviction appellate counsel's alleged ineffectiveness does not provide a legal basis for excusing the procedural default of the underlying ineffective assistance of trial counsel claim. See Martinez v. Ryan, 132 S.Ct. 1309, 1320 (2012) (flThe holding in this case does not concern attorney errors in other kinds of proceedings, including appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State's appellate courts."). Accordingly, by not advancing Grounds Two and Four in his memorandum, petitioner has failed to meet the burden of proof for habeas relief under § 2254(d) and relief on these claims must be denied.
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 petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence 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 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). Under the "unreasonable application" clause, a federal habeas court may grant relief "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. A federal habeas court reviews the state court's "last reasoned decision." Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991).
The Supreme Court has established a two-part test to determine whether a petitioner has received ineffective assistance of counsel. First, the petitioner must show that his lawyer's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 686-687 (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, the petitioner must show that his lawyer's performance prejudiced the defense. The appropriate test for prejudice is whether the defendant 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. A reasonable probability is one which is sufficient to undermine confidence in the outcome of the trial. Id. at 696.
When considering ineffective assistance of counsel claims under 28 U.S.C. § 2254(d), "it is the habeas applicant's burden to show that the state court applied Strickland to the facts of his case in an objectively unreasonable manner." Woodford v. Visciotti, 537 U.S. 19, 25 (2002)(per curium). Moreover, where a state court has adjudicated an ineffective assistance of counsel claim on the merits, a habeas court's review of a claim under the Strickland standard is "doubly" deferential. Harrington v. Richter, 131 S.Ct. 770, 778 (2011); Knowles v. mirzayance, 556 U.S. 111, 123 (2009).
According to petitioner, the Oregon Court of Appeals misapplied federal law when it determined that his incriminating statements made during recorded phone calls with the victim were voluntary. Petitioner contends that the victim, acting as a police agent, made both an implied promise and an emotional threat such that petitioner's will was overborne when he made the subject self incriminating statements. Brief in Support [56) at pp. 8-12.
In a written opinion denying petitioner's ineffective assistance claim, the Oregon Court of Appeals held that "[i]n this case, petitioner failed to establish that any threat or promise induced him to make the statements that he made to the victim during the recorded telephone calls," and therefore, counsel was not ineffective for failing to move to have these statements suppressed. Respondent's Exhibit 144, p. 15. In analyzing the question, that court noted:
Id. at 14-15.
In this federal habeas proceeding, petitioner maintains that the victim played on his sympathies during the recorded calls by referencing her young child. Brief in Support (56] at 8. He further contends that she explicitly sought admissions from him that he had raped her and told him that she wanted an apology from him for raping her. Id. at 8-9. According to petitioner, "[t]he implicit threat, contained in these calls, was that [he] would never again see [the victim] or her son, to whom he had become a father and had become a son to him." Id. According to petitioner, that eventuality was to be avoided at all costs, and thus, the state obtained crucial prosecutorial evidence through what amounted to "emotional blackmail." Id. at 9 (citing Respondent's Exhibit 112 at 70).
To be admissible, a confession must be "free and voluntary; that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however, slight, nor by the exertion of any improper influence." See Brady v. United States, 397 U.S. 742, 753 (1970) (citation omitted). A court on direct review is required to determine, in light of the totality of the circumstances, "whether a confession [was] made freely, voluntarily and without compulsion or inducement of any sort." See Withrow v. Williams, 507 U.S. 680, 689 (1993)(internal quotation marks and citation omitted).
In cases involving psychological coercion, the question is whether, in light of the totality of the circumstances, the defendant's will was overborne when he or she confessed. See Ortiz v. Uribe, 671 F.3d 863, 869 (9th Cir. 2011). The interrogation techniques of the officer must shock the conscience so as to warrant a federal intrusion into the criminal processes of the States. See Moran v. Burbine, 475 U.S. 412, 433-34 (1986). Coercive police activity is a necessary predicate to finding that a confession is involuntary within the meaning of the Due Process Clause, and the state of mind of the police is irrelevant when making this determination See Colorado v. Connelly, 479 U.S. 157, 167 (1986); Moran, 475 U.S. at 423. However, police deception alone does not render a confession involuntary. See United States v. Miller, 984 F.2d 1028, 1031 (9th Cir. 1993).
Here, even assuming that the victim was acting as an agent of law enforcement throughout the phone conversations, the totality of the circumstances indicate that petitioner's will was not overborne when he made his incriminating statements. There is simply no indication of a promise or threat from the victim made in exchange for his admissions. To be sure, petitioner expresses his desire to have a relationship with her and her son again. However, those sentiments come from him and not from any implied promise or threat by the victim. See Respondent's Exhibit 114, pp. 112-33. As the Oregon Court of Appeals found, the fact that petitioner may have held out hope that by coming clean with what he had done and apologizing to the victim, he might be able to salvage his relationship with the her and her son, does not support a conclusion that his will was overborne when he made his statements.
Notably, in Hopkins v. Cockrell, 325 F.3d 579 (5th Cir. 2003), a case petitioner characterizes as "highly relevant," the court found that portions of the petitioner's confession there were involuntary:
Id. at 584-85 (citation omitted).
Petitioner's arguments notwithstanding, Hopkins actually underscores the voluntariness of petitioner's statements to the victim here. First, in stark contrast to the facts in Hopkins, the victim here did not make any false representations to petitioner indicating that their conversations would be held in confidence, nor did she imply that if he admitted to raping her that they could get back together. Moreover, unlike the petitioner in Hopkins, petitioner was on his cell phone and free in the community at the time he made the subject statements. He was not subject to any of the stresses associated with being held in isolation for fifteen days and being repeatedly interviewed by law enforcement. Finally, even assuming that the victim employed a degree of emotionalism to draw out petitioner's confession here, Hopkins makes clear that "mere emotionalism" alone will not invalidate a confession. Id. at S84 (citing Self v. Collins, 973 F.2d 1198, 1205 (5th Cir. 1992)).
Accordingly, a fair review of the record, including a careful review of all of the telephone recordings, leads only to the conclusion that the Oregon Court of Appeals' finding that petitioner's statements were voluntary was neither contrary to nor an unreasonable application of, clearly established federal law as announced by the Supreme Court nor was it based on an unreasonable determination of the facts. As such, petitioner cannot demonstrate that the Court of Appeals' attendant determination that counsel did not render constitutionally deficient assistance when he failed to challenge the admissibility of these statements, was contrary to, or involved an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984).
Petitioner contends that his trial counsel rendered constitutionally ineffective assistance when he failed to renew a motion to have evidence of the victim's sexual encounter with her former boyfriend Chris Katzman on the day after the rape admitted at trial. Petitioner argues this evidence would have been admissible: (1) to rebut evidence concerning the victim's physical/medical condition following the rape; (2) to impeach the victim's testimony concerning her penchant for rough sadomasochistic sex; and (3) to generally impeach the victim's veracity. Petitioner maintains his counsel's failure in this regard prejudiced him because Katzman's testimony would have supported "`an inference that [the victim's] sexual contact with [petitioner) had been consensual and not traumatic, and that she did not suffer the injuries she claimed.'" Brief in Support [56) at 17-18 (quoting Respondent's Exhibit 145 at 9). According to petitioner, the victim's credibility was so essential to the trial, there is a reasonable likelihood that had counsel found and sought the admission of this evidence, the verdict of the criminal trial would have been very different." Id. at 19.
In response, the State insists that the Oregon Court of Appeals' determination that petitioner was not prejudiced by any failure on counsel's part because none of Katzman's testimony would have been admissible under then existing Oregon law is entitled to deference. Moreover, the State argues that the underlying evidentiary question whether Katzman's testimony would have been admissible is one of state law and not reviewable in this federal habeas corpus proceeding.
The Due Process Clause guarantees a criminal defendant "the right to a fair opportunity to defend against the State's accusations." Chambers v. Mississippi, 410 U.S. 284, 294 (1973). However, the right is not unfettered. Montana v. Egelhoff, 518 U.S. 37, 42 (1996). States have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Holmes v. South Carolina, 547 U.S. 319, 324 (2006). "While the Constitution ... prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of issues, or potential to mislead the jury." Id. at 326. Moreover, "the Sixth Amendment right to present relevant testimony `may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.'" Lajoie v. Thompson, 217 F.3d 663, 668 (9th Cir. 2000) (quoting Michigan v. Lucas, 500 U.S. 145, 149 (1991)). The policies embedded in Oregon's Rape Shield statute represent such a legitimate interest.
Here, even assuming, as the Oregon Court of Appeals found, that counsel rendered deficient performance when he failed to renew his motion, petitioner cannot meet his burden of demonstrating that the court's determination, that he was not prejudiced by counsel's failure because none of the potential evidence would have been admissible under Oregon law at the time of trial, was contrary to or unreasonable application of Strickland.
The Oregon Court of Appeals found that counsel provided inadequate assistance when he failed to interview Katzman to determine whether "evidence concerning the victim's sexual encounter with Katzman was admissible to rebut the evidence from the hospital examination conducted two days after the rape and one day after the sexual encounter with Katzman." Respondent's Exhibit 144 at 23 (citing OEC 412(2)(b)(B)(other evidence of past sexual behavior is precluded unless its admission "(iis necessary to rebut or explain scientific or medical evidence offered by the state")).
Nevertheless, that court ultimately held that petitioner was not prejudiced by counsel's failure because: (1) the challenged evidence would not have shown that the victim lacked injuries consistent with her version of events, and therefore, it was not admissible under OEC 412(2) (b) (E); and (2) pursuant to controlling Oregon law, the evidence was not admissible to show it was unlikely that the victim would have engaged in consensual sex with anyone the day after being raped. Respondent's Exhibit 144 at 24 (citing State v. Beeler, 166 Or.App. 275, 999 P.2d 497, rev den, 331 Or. 244 (2000)(evidence that a victim engaged in consensual intercourse one day after a rape was inadmissible)).
Accordingly, a fair review of the record, including the Oregon Court of Appeals' reasoned 25-page opinion denying relief on petitioner's claims, leads only to the conclusion that that court reasonably applied Strickland's prejudice prong when it determined that petitioner had failed to establish that he was prejudiced by counsel's failure to renew his motion to introduce evidence related to the victim's encounter with Katzman. Moreover, in view of the Court's conclusion above, i.e., that the Oregon Court of Appeals' determination, that petitioner's admissions in the recorded calls with the victim were voluntary, was neither contrary to nor an unreasonable application of, clearly established federal law, nor was it based on an unreasonable determination of the facts; any attempt to show prejudice based on an argument that the sex between petitioner and the victim was consensual would fail.
Respondent's Exhibit 105 at 11 (emphasis added).
For these reasons, the Petition for Writ of Habeas Corpus (3] is DENIED, and this case is DISMISSED, with prejudice. In addition, the Court finds that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. 2253(c)(2). Accordingly, this case is not appropriate for appellate review.
IT IS SO ORDERED.
