Espinoza-Quiroz v. Cain

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

FELIX ESPINOZA-QUIROZ, Case No. 2:18-cv-00467-MC

Petitioner, OPINION AND ORDER

v.

BRAD CAIN, Superintendent,

Snake River Correctional Institution,

Respondent.

______________________________

MCSHANE, District Judge:

Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging

trial court error and the deprivation of his constitutional right to counsel. Respondent argues that

petitioner’s claims are procedurally defaulted and otherwise lack merit. Petitioner did not file a

brief in support of his petition or respond to an Order to Show Cause why the petition should not

be denied. Based on this record, petitioner fails to establish entitlement to federal habeas relief.

BACKGROUND

In May 2010, petitioner was indicted on numerous counts of sexual crimes, including

Incest, Rape, Sodomy, Unlawful Sexual Penetration, and Sexual Abuse, arising from the sexual

abuse of his daughter. Resp’t Ex. 102 at 2-5. In September 2010, petitioner was indicated on one

count of Tampering with a Witness, based on petitioner’s successful attempt to convince his

daughter to recant the allegations against him. Resp’t Ex. 102 at 1. In October 2010, petitioner

proceeded to a jury trial on all charges.

The jury found petitioner guilty of two counts of Sexual Abuse in the First Degree and

the single count of Tampering with a Witness. Resp’t Ex. 104 at 482. The jury was unable to

reach a verdict on the remaining counts, and the trial court declared a mistrial. Resp’t Ex. 104 at

483-84. The trial court imposed concurrent 75-month sentences on each of petitioner’s sexual

abuse convictions and a consecutive, 24-month sentence on petitioner’s tampering conviction,

for a total of 99 months of imprisonment. Resp’t Ex. 104 at 495.

In February 2011, petitioner pled guilty to all remaining charges against him. Resp’t Ex.

103. The parties agreed that petitioner would be sentenced to a total of 120 months, with the

sentenced to be served concurrent with the 99-month sentence previously imposed. The trial

court accepted petitioner’s guilty pleas and sentenced petitioner in accordance with the plea

petition. Resp’t Ex. 104 at 507-15, 522.

Petitioner subsequently filed a petition for post-conviction relief (PCR) and alleged

several claims against trial counsel and the trial court. Resp’t Exs. 111. After an evidentiary, the

PCR court denied relief on all claims. Resp’t Exs. 125-26. Petitioner appealed the denial of his

claims alleging ineffective of counsel based on the failures to seek severance of the witness

tampering charge and to object to the form of the hearsay notice issued by the prosecutor prior to

the trial. Resp’t Ex. 127. The Oregon Court of Appeals affirmed without opinion, and the Oregon

Supreme Court denied review. Resp’t Exs. 129-31.

Petitioner now seeks federal habeas relief.

DISCUSSION

In his federal habeas petition, petitioner alleges six grounds for relief. Pet. at 7-14 (ECF

No. 2). Although petitioner raised all grounds in his PCR petition, he did not raise Grounds One,

Four, Five, or Six before the Oregon appellate courts during his PCR appeal.1 Resp’t Exs. 111,

127, 129. As a result, these grounds are unexhausted and barred from federal review. See 28

U.S.C. § 2254(b)(1)(A); Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam) (before

seeking federal habeas relief, a petitioner must “fairly present” a federal claim to the State’s

highest court “in order to give the State the opportunity to pass upon and to correct alleged

violations of its prisoners’ federal rights”).

In Grounds Two, petitioner alleges that trial counsel was ineffective by failing to object

to a hearsay notice issued by the prosecutor prior to trial, because the notice failed to describe the

substance of the proposed hearsay statements with particularity. In Ground Three, petitioner

alleges that counsel was ineffective by failing to move for severance of the witness tampering

charge from the sexual abuse charges. Respondent maintains that the PCR court decision

rejecting these claims is entitled to deference. I agree.

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, as determined by the Supreme Court of the

United States.” 28 U.S.C. § 2254(d)(1). A state court decision is “contrary to” 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 Supreme Court precedent. Brown v. Payton, 544 U.S.

1 In Grounds One, Four, Five, or Six, petitioner alleges ineffective assistance of counsel

based on trial counsel’s alleged failures to retain an expert witness, move for election, and ensure

that petitioner’s plea was knowing and voluntary, and trial court error based on the trial court’s

failure to ensure his plea was knowing and voluntary. Pet. at 7-14.

133, 141 (2005). 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).

Under well-established Supreme Court precedent, a habeas petitioner 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). To establish deficient performance, petitioner “must show that counsel’s representations

fell below an objective standard of reasonableness.” Id. at 688. To demonstrate prejudice,

petitioner “must 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. Unless petitioner

“makes both showings, it cannot be said that the conviction...resulted from a breakdown in the

adversary process that renders the result unreliable.” Id. at 687.

The PCR court rejected petitioner’s claim that trial counsel was deficient by failing to

object to the notice of hearsay based on its lack of particular information. Resp’t Ex. 126 at 2.

The PCR court explained that the “notice advised Petitioner of who the witnesses [to the

statements] were and where statements could be found in the discovery material. His trial

attorney felt that notice was adequate. There is no credible evidence that an objection would have

been successful.” Resp’t Ex. 126 at 2. The PCR court’s decision was not unreasonable.

During his PCR appeal, petitioner cited the decision in State v. Chase, 240 Or. App. 541

(2011), where the Oregon Court of Appeals held that a notice of hearsay statement must identify

the “substance of the statement sought to be introduced” and “identify the witness or the means

by which the statement would be introduced.” Id. at 546-47. Notably, the decision in Chase was

issued after petitioner’s trial in October 2010. The Oregon Court of Appeals subsequently

concluded that Chase “broke new ground,” because “[n]o prior appellate decision had addressed

. . . whether the state’s OEC 803(18a)(b) notice, although timely, may still be insufficient based

on vagueness.” Hagberg v. Coursey, 269 Or. App. 377, 386 (2015). Accordingly, at the time of

petitioner’s trial, counsel had no basis to object to the notice on particularity grounds.

“A fair assessment of attorney performance requires that every effort be made 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.”

Strickland, 466 U.S. at 689. Given that trial counsel did not have the benefit of Chase and could

not have necessarily anticipated its holding, the PCR court reasonably found that counsel was not

deficient in failing to object to the notice. See Clark v. Arnold, 769 F.3d 711, 727 (9th Cir. 2014)

(explaining that Strickland does “not expect counsel to be prescient about the direction the law

will take”) (citation omitted); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994) (stating that

counsel does not render ineffective assistance by failing to anticipate a decision in a later case).

The PCR court also rejected petitioner’s claim that counsel was deficient in failing to

seek severance of the witness tampering charge. Specifically, the PCR court found, “There was

no credible evidence presented that a motion to sever would have been successful or that even if

granted the witness tampering evidence would not have been admissible in the sex related case.”

Resp’t Ex. 126 at 2. This finding was not unreasonable.

During the PCR proceedings, petitioner’s trial counsel submitted an affidavit and

explained why he did not seek severance of the witness tampering charge.

[A] key piece of evidence for the defense in Case C100947CR [the sexual

allegations case] was the fact that the victim had recanted the allegations at one

point. The reason she recanted the allegations, according to the state, was because

the defendant had tampered with her. These were the allegations that gave rise to

Case No. C1001966CR [the witness-tampering case]. There was simply no way

the defense could use the victim’s recantation without the state also being allowed

to address the alleged reasons for the recantation. Thus, even had the cases been

severed, the jury still would have heard about the witness tampering allegations.

Resp’t Ex. 120 at 3. As an initial matter, counsel’s decision was a strategic one, and “strategic

choices made after thorough investigation of law and facts relevant to plausible options are

virtually unchallengeable.” Strickland, 466 U.S. at 690.

Moreover, petitioner fails to explain how trial counsel could have introduced evidence

that his daughter recanted the allegations while also excluding evidence that she did so because

of petitioner’s coercion. The jury would have heard evidence of petitioner’s witness tampering

regardless of severance, and the PCR court reasonably concluded found no deficiency or

prejudice. Sandoval v. Calderon, 241 F.3d 765, 772 (9th Cir. 2000) (explaining that “cross-

admissibility dispels the prejudicial impact of joining all counts in the same trial” because “[t]he

jury would have heard the evidence in any event”).

Accordingly, petitioner fails to establish that his counsel rendered ineffective assistance,

and he is not entitled to habeas relief.

CONCLUSION

The Petition for Writ of Habeas Corpus (ECF No. 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).

DATED this 1st day of November, 2019.

s/ Michael J. McShane

Michael J. McShane

United States District Judge