# Erickson v. Courtney

> District Court, D. Oregon · January 7, 2020

URL: https://www.frixlaw.com/law-library/cases/10391560

## Case

- **Court:** District Court, D. Oregon
- **Decided:** January 7, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10391560

## How later opinions describe it (automated extraction)

- holding that IAC at an initial-review collateral proceeding may establish cause to excuse a petitioner’s procedural default of substantial claims of ineffective assistance of trial counsel (IATC”)
- explaining two-prong analysis for [AC claims
- explaining that a court is “generally precluded under the ‘law of the case’ doctrine from reconsidering an issue that has already been decided by the same court in the identical case’’
- holding that ineffective assistance of PCR counsel does not give rise to a constitutional claim

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

THOMAS GERALD ERICKSON,
Case No. 2:12-cv-01466-IM
Petitioner,
OPINION AND ORDER
v.
RICK COURTNEY, Superintendent,
Eastern Oregon Correctional Institution,
Respondent.

IMMERGUT, District Judge.
Petitioner. Thomas Gerald Erickson (“Erickson”), an inmate at the Eastern Oregon
Correctional Institution, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254.
Erickson raises multiple grounds for relief premised on the assertion that his prosecution was
time barred. For the reasons set forth below, this Court DENIES Erickson’s Amended Petition
(ECF No. 126) as to all grounds except ground seven.' Respondent concedes that Erickson’s

! There is considerable confusion regarding the numbering of Erickson’s grounds for
relief as evidenced by the parties’ briefing. This Court addresses the grounds as they are
numbered in Erickson’s Amended Petition (ECF No. 126) and referenced in his Suppl. Br. in
Supp. of the First Am. Pet. (ECF No. 145) at 3-5 and his Second Suppl. Br. in Supp. of First Am,
PAGE 1 —- OPINION AND ORDER

conviction for attempted rape should be vacated. Resp’t Resp. to Supp. and Second Supp. Br. □

(ECF No. 168) at 3. Accordingly, this Court GRANTS Erickson’s Amended Petition as to
ground seven and VACATES Erickson’s conviction only for Attempted Rape in the First Degree,
as alleged in count eleven of the indictment in Deschutes County Circuit Court case no.
03FE0823ST.

. BACKGROUND .
1. Erickson’s Trial
On July 8, 2003, a grand jury returned an indictment charging Erickson with five counts
of Sodomy in the First Degree, five counts of Sexual Abuse in the First Degree, and one count of
Attempted Rape in the First Degree. Resp’t Exs. (ECF No. 25), Ex. 102. The indictment alleged
that Erickson sexually assaulted his daughter “A.I.” between October 3, 1986 and April 23, 1992.
Resp’t Ex. 102, Resp’t Ex. 104 at 17-23. A. was under the age of twelve when the abuse
occurred. Resp’t Ex. 102. A.I. delayed disclosing the abuse to Oregon officials until she was in
high school. Resp’t Ex. 104 at 167-71. She was twenty-one years old at the time of trial. The
Honorable Anna J. Brown previously summarized the evidence and arguments presented at trial

- as follows:
A... . testified that there were five incidents involving
four acts of sodomy and five acts of sexual abuse that occurred
when she visited Petitioner during Christmas of 1987 and through
her stay into January 1988 at a Browning street residence in ~
Sunriver, Oregon. She returned for a visit to the same residence □
around Easter in 1988, and she described three incidents during
that visit when Petitioner committed two sodomy offenses and two
sexual abuse offenses. In the spring of 1989, A.I. visited Petitioner
at a residence on Solar Drive in Sunriver, and she testified that
Petitioner committed one act of sexual abuse and one act of
Pet. (ECF No. 155) at 2, 10-12: | oe

PAGE 2 - OPINION AND ORDER

sodomy. A.I. testified that the last incident occurred in the Spring
of 1991 when she visited Petitioner at the Browning residence and
Petitioner tried to rape her by attempting intercourse. A.I. testified
that in 1992 and 1993 she told a school counselor in Utah about
Petitioner’s sexual abuse.
At the end of the state’s case, Petitioner’s trial counsel
moved for a judgment of acquittal on three bases: (1) that the
statute of limitations barred the prosecution; (2) that given the
victim’s lack of specificity regarding three incidents during the
Christmas visit, the state failed to prove more than three incidents.
of sodomy; and (3) that given the confusing testimony as to dates
and places the state otherwise failed to provide sufficient proof of
all of the incidents. As to the statute of limitations, counsel argued
that Or. Rev. Stat. § 131.125(2) required the state to commence the
prosecution within 6 years of a report of the offense tolaw
enforcement or other government agency, and that the victim’s
disclosure to the Utah school counselor in 1992 and 1993 triggered
the running of the statute. Specifically, counsel argued that the
Utah school counselor qualified as an “other governmental
agency.” The trial court rejected this argument. The trial judge
noted that the argument presented open questions of law and found
that the Utah school counselor was not an “other governmental
agency” and that the limitations period was not triggered until the
' State of Oregon received a report. The trial judge also noted that
the school counselor likely had a duty not to disclose. The judge
denied Petitioner’s other bases for acquittal-as well. □
Petitioner’s substantive trial defenses were the statute of
limitations and an attack on his daughter’s credibility. He called
several witnesses to support his argument that she was a
pathological liar and manipulator and that she learned those traits
to survive a difficult childhood. A.I. experienced extreme poverty
living with her drug-using and drug-dealing mother, and she was
sexually abused by her step-uncle in 1990. Petitioner argued that
A.J. made up the allegations against him because she was resentful
that he did not protect her from the neglect and abuse she
experienced. He also argued that the timing of A.I.’s allegations _
were related to her desire to become closer with Petitioner’s
stepdaughter, then 25-years-old, by supporting the step-daughter’s
allegation that Petitioner touched her inappropriately sometime
before 1990. Several witnesses testified that A.I. had a reputation

PAGE 3 — OPINION AND ORDER

for untruthfulness, and that she had denied being abused by
Petitioner over the years.
Op. and Order (ECF No. 97) at 2-4.
The jury returned a guilty verdict on all counts. Resp’t Ex. 101. The trial judge imposed
consecutive 240-month sentences for each count of sodomy, consecutive sixty-month sentences
for each count of sexual abuse, and a ninety-month durational departure sentence for attempted
rape. /d.
i. State Appellate and Collateral Review
Erickson filed a direct appeal raising two sentencing errors. Resp’t Ex. 106. The Oregon
Court of Appeals initially held that the trial court’s imposition of a departure sentence was
plainly erroneous because it violated Blakely v. Washington, 542 U.S. 296 (2004). State v.
Erickson, 205 Or. App. 555, 556 (2006). The Oregon Supreme Court reversed and remanded to
the Oregon Court of Appeals to consider whether reaching the unpreserved sentencing error
would advance the ends of justice. State v. Erickson, 345 Or. 315, 315 (2008). On remand, the
Oregon Court of Appeals declined to exercise its discretion to review the unpreserved error and

affirmed Erickson’s departure sentence. State v. Erickson, 227 Or. App. 299, 302-03 (2009). The
Oregon Supreme Court denied review.. State v. Erickson, 346 Or. 361 (2009).
Erickson subsequently filed a pro se petition for state post-conviction relief (PCR),
alleging that trial and appellate counsel rendered ineffective assistance of counsel (“IAC”) and
that he was denied his right to a fair trial because (1) a deputy district attorney withdrew from the
case without disclosing why, (2) a second deputy district attorney failed to disclose exculpatory.
evidence, and (3) the trial judge admitted evidence of prior bad acts in violation of Erickson’s □

PAGE 4 — OPINION AND ORDER

right to be free from double jeopardy, denied Erickson’s motion for change of venue, denied
various objections, disregarded the applicable statute of limitations, refused to dismiss Erickson’s
attorney, and imposed an illegal sentence. Resp’t Ex. 118. .
The PCR trial court appointed attorney Mark Mordini as counsel for Erickson. Resp’t Ex.
119. Mordini subsequently filed a notice that Erickson’s pro se PCR petition would constitute his
formal petition to which the state should answer. Resp’t Ex. 122. Counsel did not attach any
supporting documentation. See Jd. The state moved for summary judgment based on Erickson’s
failure to comply with OR. REV. STAT. § 138.580, requiring that a petitioner attach supporting
documentation to his PCR petition. Resp’t Ex. 125. The PCR court summarily dismissed the
petition. Resp’t Exs. 128-29.
On appeal, Erickson’s appellate counsel filed a Balfour brief certifying in Section A that _
he could not identify any nonfrivolous issue for appeal.’ Resp’t Ex. 130. Appellate counsel
attached a copy of Erickson’s pro se PCR petition as part of the excerpt of record. /d. Erickson
did not submit a Section B for the brief. /d. at 4-5. The Oregon Court of Appeals affirmed
without opinion. Erickson v. Coursey, 246 Or. App. 576 (2011). Erickson thereafter filed (1) a
pro se petition for review complaining that appellate counsel rendered ineffective assistance by:
failing to file a timely petition for review (Resp’t Ex. 132), a motion to recall the appellate
judgment (Resp’t Ex. 133), and a second pro se petition for review again complaining of

* Or. REV. STAT. § 138.580 requires that “affidavits, records or other documentary
evidence supporting the allegations of the petition . . . be attached to the petition.”
3 Pursuant to State v. Balfour, 311 Or. 434 (1991), if appointed counsel determines there
are no meritorious issues for appeal, counsel files a brief divided into Sections A and B. Counsel
completes Section A containing a statement of the case sufficient to apprise the appellate court of
the jurisdictional basis for the appeal. If the defendant seeks to raise any issues, he is giventhe =
PAGE 5 — OPINION AND ORDER

ineffective assistance of appellate counsel (Resp’t Ex. 134). The Oregon Supreme Court granted
the motion to recall the appellate judgment but denied review. Resp’t Ex. 135.
Il. Erickson’s Federal Habeas Corpus Proceeding
In Erickson’s original habeas petition to this Court, he alleged the following grounds for
relief: (1) prosecutorial misconduct for failing to disclose exculpatory evidence; (2) double
jeopardy; (3) unconstitutionally selected and impaneled jury; (4) ineffective assistance of trial
and appellate counsel; and (5) ineffective assistance of PCR counsel. Pet’r’s Habeas Pet. (ECF
No. 1) at 4-5. Respondent moved the Court to deny habeas relief because Erickson procedurally
defaulted grounds one through four by failing to fairly present the grounds to the Oregon
Supreme Court on direct or PCR appeal and because ground five is not cognizable. Resp’t Resp.
(ECF No. 23) at 1-2, 5-8.
Petitioner responded in the alternative that (1) the procedural default of his LAC claims is
excused pursuant to the U.S. Supreme Court’s holding in Martinez v. Ryan, 132 S. Ct. 1309
(2012) (holding that IAC at an initial-review collateral proceeding may establish cause to excuse
a petitioner’s procedural default of substantial claims of ineffective assistance of trial counsel
(IATC”)); (2) the procedural default of his PCR claims does not preclude habeas relief because
the PCR trial court relied on a state procedural rule that is not independent of the federal question
and adequate to support the judgment; and (3) he has made a colorable showing of actual
innocence. Pet’r’s Br. in Supp. at 17-23. Additionally, Erickson moved to file an amended habeas
petition. Pet’r’s Mot. to Amend (ECF No. 71). .

opportunity to include a Section B containing his assignments of error. .

PAGE 6 - OPINION AND ORDER □

On March 25, 2015, Judge Brown issued an Opinion denying Erickson’s habeas petition
because he procedurally defaulted all grounds raised in both his petition and proposed amended
petition. Op. and Order (ECF No. 97) at 16, 20-23. J udge Brown rejected Erickson’s assertion
that the procedural default of his IAC claims was attributable to the deficient performance of
PCR trial counsel such that the default should be excused pursuant to the holding in Martinez. Id.
at 9, 16-22. Additionally, Judge Brown held that she need not decide whether Or. REV. STAT.
§ 138.580 is an independent and adequate state procedural rule because the PCR trial court
rendered a decision on the merits. /d. at 16-21 & n. 6. Finally, Judge Brown held that Erickson
failed to make a colorable showing of actual innocence. Jd. at 22-23. Judge Brown declined to
issue a certificate of appealability (“COA”). Jd. at 26; see 28 U.S.C. § 2253(c)(1)(A) (providing
that an appeal from a final order in a § 2254 proceeding may not be taken unless a judge or

_ circuit justice issues a COA).
- On August 28, 2015, the Ninth Circuit granted Erickson’s request for a COA with respect
to a single issue: whether the district court properly ruled that Erickson procedurally defaulted his
claim that trial counsel “rendered ineffective assistance by failing to adequately challenge the
prosecution of offenses on the ground they were barred by the statute of limitations.” Erickson v.
Courtney, No. 15-35320, Order (ECF No. 5) at 1; see 28 U.S.C. § 2253(c)(3) (providing that a
COA “shall indicate which specific issue or issues satisfy the showing required for a COA).
On August 8, 2017, the Ninth Circuit issued a memorandum decision holding that □
‘Respondent “effectively conced[ed]” Erickson’s argument that his procedural default was
excused under Martinez and, in any event, “Erickson appears to meet the requirement for the
Martinez exception” because “[h]is post-trial counsel essentially abandoned him” and “at least

PAGE 7 — OPINION AND ORDER

one of Erickson’s statute-of-limitations-based IATC arguments has some merit.” Erickson v.
Courtney, 702 F. App’x 585, 588 & n.2 (9th Cir. 2017). The Ninth Circuit reversed and
remanded for further proceedings. /d.
IV. __ Erickson’s Amended Petition
On remand, Judge Brown reconsidered Erickson’s motion for leave to file an amended
petition. Op. and Order (ECF No. 124). Judge Brown granted Erickson’s motion as to proposed
grounds six through nine (statute-of-limitations-based [ATC claims) and ground ten (a
freestanding claim of actual innocence). Jd. at 29. Judge Brown denied the motion as to the
remaining grounds for relief. /d.
Erickson subsequently filed an Amended Habeas Petition (ECF No. 126) re-alleging “pro
se” grounds one through five and adding grounds six through ten. Specifically, Erickson alleges
in his Amended Petition:
Ground One: “Conviction obtained by the unconstitutional failure
of the prosecution to disclose to the defendant evidence favorable
to the defendant.”
Ground Two: “Conviction obtained by a violation of the
protection against double jeopardy.”
Ground Three: “Conviction obtained by action of a grand or petit
jury which was unconstitutionally selected and impaneled.”
Ground Four: “Denial of effective assistance of [trial and
appellate] counsel.”
Ground Five: “Post-Conviction Attorney Mr. Mordini was
. ineffective in representation.” “(While not a Ground for Relief the
allegation is relevant and is restated).”
Ground Six through Nine: “Petitioner was denied his 6th and □
14th Amendment rights to effective assistance of trial counsel

PAGE 8 — OPINION AND ORDER

when counsel failed to object to, effectively object to or assign
plain error to the court’s failure to dismiss the state’s prosecution
of crimes after the statute of limitations had expired.”
Ground Ten: “Petitioner is actually innocent of his convictions
and sentences.” _
Pet’r’s Am. Pet. at 3-6.
. DISCUSSION
I. “Pro Se” Grounds One through Five >

Respondent urges the Court to deny habeas relief as to grounds one through five because
Judge Brown previously dismissed the grounds as procedurally defaulted and denied Erickson
leave to add those grounds in his Amended Petition. Resp’t Resp. to Supp. and Second Supp. Br.
at 1-3. This Court agrees for the reasons set forth below.

Generally, a state prisoner must exhaust all available state court remedies either on direct
appeal or through collateral proceedings before a federal court may consider granting habeas
corpus relief. 28 U.S.C. § 2254(b)(1). “[A] petitioner satisfies the exhaustion requirement by
fairly presenting the federal claim to the appropriate state courts . . . in the manner required by
the state courts, thereby afford[{ing] the state courts a meaningful opportunity to consider
allegations of legal error.” Casey v. Moore, 386 F.3d 896, 915-16 (9th Cir. 2004) (internal.
quotation omitted); Baldwin v. Reese, 541 U.S. 27, 29 (2004). “A claim is procedurally defaulted
if it was rejected by the state courts based on ‘independent’ and ‘adequate’ state procedural
grounds, or if it is unexhausted and state procedural rules would now bar the petitioner from
bringing the claim in state court.” Rodney v. Filson, 916 F.3d 1254, 1259 (9th Cir. 2019)
(citations and internal quotations omitted); O Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). A

PAGE 9 — OPINION AND ORDER .

state prisoner is barred from raising procedurally defaulted claims in federal court unless he “can
demonstrate cause for the default and actual prejudice as a result of the alleged violation of
federal law or demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991); Rodney, 916 F.3d at
1259,
The Ninth Circuit’s COA did not extend to Judge Brown’s dismissal of grounds one
through three, four (to the extent it is directed at appellate counsel) and five. The Ninth Circuit
therefore did not address those grounds in its memorandum decision. On remand, Judge Brown
denied Erickson’s motion to reallege grounds one through five. See Op. and Order (ECF No.
124) at 19, n. 10 & 29. Based on this procedural history, this Court concludes that Judge Brown’s
decision denying these grounds as procedurally defaulted is “law of the case.” See Sechrest v.
Ignacio, 549 F.3d 789, 802 (9th Cir. 2008) (explaining that a court is “generally precluded under
the ‘law of the case’ doctrine from reconsidering an issue that has already been decided by the
same court in the identical case’’). Additionally, if this Court exercises its discretion to reconsider
Erickson’s procedural arguments, it would conclude that he procedurally defaulted his available
state remedies for the reasons set forth below.
A. Ground One
Erickson alleges in ground one that the prosecution failed to disclose exculpatory
evidence concerning a 1990 investigation that included allegations that Erickson sexually abused
A.I. Pet’r’s Am. Pet. at 3; Pet’r’s Second Suppl. Br. in Supp. at 8. Erickson argues that this Court
should consider his argument, not addressed by Judge Brown, that the PCR trial court’s reliance
on OR. REV. STAT. § 138.580 does not preclude habeas relief because the state procedural rule is

PAGE 10 — OPINION AND ORDER

not independent of federal law and adequate to support the judgment. Pet’r’s Reply (ECF No.
176) at 8. The “independent and adequate” state rule doctrine provides that if a state court
declines to consider a petitioner’s federal constitutional claims based on a state procedural rule,
habeas relief is precluded only if the state rule is not interwoven with the federal claim and the
rule is clear, consistently applied, and well established at the time of the petitioner’s default.
Sechrest, 549 F.3d at 802; Murray v. Schriro, 745 F.3d 984, 1015 (9th Cir. 2014).
‘This Court need not decide whether Or. REV. STAT. § 138.580 is an independent and
adequate state rule because Erickson procedurally defaulted ground one by failing to raise it to
the Oregon Supreme Court on appeal from the denial of PCR relief, not by virtue of the PCR
court’s application of the state procedural rule at the trial level. Accordingly, even if this Court
accepts Erickson’s argument that OR. REV. STAT. § 138.580 is not an independent and adequate
tule, that conclusion would not excuse Erickson’s subsequent procedural default on appeal to the
Oregon Supreme Court. Similarly, Erickson’s argument that his Balfour brief fairly presented his

_ federal constitutional claims to the Oregon Court of Appeals does not excuse his procedural
default at the Oregon Supreme Court.
B. Grounds Two and Three
Erickson procedurally defaulted ground two (double jeopardy) and ground three
(unconstitutionally selected and impaneled jury) by failing to raise the grounds on direct appeal.
Erickson does not argue to the contrary. Accordingly, habeas relief is denied as to those grounds. □

C. Ground Four (Ineffective Assistance of Appellate Counsel)

Erickson alleges in ground four that trial and appellate counsel were ineffective in several
respects. To the extent this ground is directed at appellate counsel, Erickson procedurally

PAGE 11 —OPINION AND ORDER

defaulted his available state remedies by failing to raise it on appeal from the denial of
post-conviction relief. Erickson’s procedural default is not excused pursuant to Martinez because
that exception does not extend to ineffective assistance of appellate counsel claims. Davilla v.
Davis, 137 S. Ct. 2058, 2065-70 (2017).
This Court also rejects Erickson’s argument that his procedural default should be excused
pursuant to the independent and adequate state rule doctrine. Erickson procedurally default this
claim by failing to raise it to the Oregon Supreme Court on appeal from the denial of PCR relief,
not by virtue of the PCR trial court’s application of the state procedural rule.
D. Ground Five
Erickson procedurally defaulted his claim that PCR counsel was ineffective by failing to □

raise it to the Oregon Supreme Court on appeal from denial of PCR relief. In any event, Erickson
concedes that ineffective assistance of PCR counsel is not a cognizable claim. See Pet’r’s Am.
Pet. at 4; Coleman, 501 U.S. at 752-53 (holding that ineffective assistance of PCR counsel does
not give rise to a constitutional claim). Accordingly, habeas relief is denied as to this ground.
II. Ineffective Assistance of Trial Counsel (Grounds Four, Six, Seven, Eight, and Nine)
The Ninth Circuit directed this Court to consider the merits of Erickson’s
statute-of-limitation-based IATC claims. Erickson alleges in grounds four, six, seven, eight, and
nine that trial counsel failed to argue that (1) the statute of limitations expired as to all conduct
before September 29, 1988, (2) the amendments extending the statute of limitations did not apply
to the attempted rape charge, (3) the statute of limitations expired as to conduct in the Spring of -
1989 because A.I. reported the abuse to a Utah school counselor six years before the charges
were brought, and (4) the statute of limitations was triggered by a 1990 Children Services

PAGE 12 — OPINION AND ORDER

Division (“CSD”) investigation. Pet’r’s Am. Pet. at 4-6. This Court considers Erickson’s new
evidence when addressing the merits of these grounds. See Jones vy. Shinn, No. 18-99006, 2019
WL 6442931, at *2 (9th Cir. Nov. 29, 2019) (holding that habeas court may consider new
evidence presented by a petitioner at a Martinez hearing to grant habeas relief on the underlying
claim). □

A. Standards
Pursuant to 28 U.S.C. § 2254(d), a district court shall not grant a petition for writ of
habeas corpus filed by a state prisoner, with respect to any claim that was adjudicated on the
merits in state court, unless the adjudication resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established federal law, or resulted in a decision
that was based on an unreasonable determination of the facts in light of the evidence presented.
Harrington v. Richter, 562 U.S. 86, 100 (2011). A state court unreasonably applies clearly
established federal law under § 2254(d)(1), if its decision is so lacking in justification that there
is an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement. Id.; Woods v. Sinclair, 764 F.3d 1109, 1121 (9th Cir. 2014).
In Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1987), the Supreme Court held
that in order to prevail on a Sixth Amendment IATC claim a habeas petitioner must prove that

counsel’s performance fell below an objective standard of reasonableness, and there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. “The benchmark for judging any claim of ineffectiveness must be
whether counsel’s conduct so undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result.” /d. at 686; Cullen v. Pinholster,

PAGE 13 —- OPINION AND ORDER

563 U.S. 170, 189 (2011). When considering an IAC claim, this Court’s scrutiny of counsel’s
performance is highly deferential, and the Court “‘must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.’” Knowles v.
Mirzayance, 556 U.S. 111, 124 (2009) (quoting Strickland, 466 U.S. at 689); Richter, 562 U.S. at
104.
“Counsel has a duty to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.” Benmore v. Chappell, 788 F.3d 1151, 1162-63
(9th Cir. 2015). “[A] tactical decision may constitute constitutionally adequate representation
even if, in hindsight, a different defense might have fared better.” Jd. However, “‘ajn attorney’s

ignorance of a point of law that is fundamental to his case combined with his failure to perform
basic research on that point is a quintessential example of unreasonable performance under
Strickland.’” Hernandez v. Chappell, 923 F.3d 544, 550 (9th Cir. 2019), petition for cert.
docketed (Sept. 27, 2019), quoting Hinton v. Alabama, 571 U.S. 263, 274 (2014).
B. Analysis
1. Failure to Argue that the Statute of Limitation Expired as to All
Conduct that Occurred before September 29, 1988 (Ground Six)
Erickson was charged with sexually assaulting A.I. between October 3, 1986 and April
23, 1992. Resp’t Ex. 102, Resp’t Ex. 104 at 17-23. Prior to 1989, OR. REV. STAT. § 131,125
provided that the statute of limitations for felony offenses other than murder and manslaughter
was three years. 1973 Or. Laws 2706. In 1989, the statute was amended to lengthen the limitation
period to six years for certain felonies, including sodomy in the first degree and sexual abuse in

first degree, if the victim, at the time of the crime was under eighteen years of age. 1989 Or.

PAGE 14 — OPINION AND ORDER

Laws 1451. The amendment took effect on October 3, 1989. State v. Cookman, 324 Or. 19, 23
(1996).
In 1991, the legislature again amended the statute to provide that a prosecution for
sodomy in the first degree or sexual abuse in the first degree “may be commenced within Six
years after the commission of the crime or, if the victim, at the time of the crime was under 18
years of age, anytime before the victim attains 24 years of age, or within six years after the
offense is reported to a law enforcement agency or other governmental agency, whichever occurs
first.” 1991 Or. Laws 632 (emphasis added), The amendment took effect on September 29, 1991.
State v. Cookman, 127 Or. App. 283, 285 (1994).
Erickson contends that trial counsel was ineffective for failing to “learn and argue” that
the applicable statute of limitations expired “for all conduct occurring before September 29, 1988
(three years before the effective date of the 1991 amendment).” Pet’r’s Supp. Br. at 3. Erickson’s
argument is premised on two propositions: (1) the 1989 amendment did not extend the limitation
period to six years for offenses committed before its effective date of October 3, 1989, and (2)
the 1991 amendment did not revive expired offenses. Pet’r’s Br. in Supp. (ECF No. 40) at 14;
Pet’r’s Supp. Br. at 3. Erickson argues that had counsel “sought a ruling on the limitation issue
prior to trial [it] would have led to the dismissal of all but one count of sexual abuse and one
count of sodomy alleged to have occurred in the Spring of 1989.” Pet’r’s Br. in Supp. at 15.
Erickson’s argument fails at the first step. Erickson relies on State v. Tyler, 108 Or. App.
378 (1991) to support his argument that the 1989 amendment does not apply to offense

committed before its effective date. Pet’r’s Br. in Supp. at 11. This Court finds 7: yler □
distinguishable. In Tyler, the three-year limitation period had expired before the 1989 amendment

PAGE 15 —- OPINION AND ORDER

lengthened the limitation period to six years. Tyler, 108 Or. App. at 380. The court held that the
1989 amendment did not apply because “[a]pplying the extended limitation period . .. would
impair [the] defendant’s right to be free from prosecution that had already inured by expiration
the period in the old statute.” Id. at 381 (emphasis added}.Tn ‘so hotding, the court noted that it
was not addressing “the statute’s applicability to cases that were not barred when the statute
amended.” /d., n. 2.
In State v. Dufort, 111 Or. App. 515, 517 (1992), the Oregon Court of Appeals
recognized that the 1989 amendment failed to distinguish between prosecutions for crimes
committed before and after the amendment was enacted, but concluded that it was “consistent
with the purpose of this legislative change, and with pertinent case authority, to conclude that the
amended Statute of Limitations is not retroactive legislation and that it applies to incidents of
sexual abuse that had not yet been barred under the previous statute.” Jd. at 520. The Oregon
Court of Appeals distinguished its holding in Tyler as follows:
In State v. Tyler, we held that an extended limitation period did not
apply to a criminal prosecution where the shorter period had
expired before the longer period was enacted. We specifically
noted there that we were not deciding the statute’s application
when the action was not barred at the time that the statute was
amended. As pointed out in an often quoted statement by Judge
Learned Hand:
Certainly it is one thing to revive a prosecution
already dead and another to give it a longer lease of
life. The question turns upon how much violence is
done to our instinctive feelings of justice and fair .
play. For the state to assure a man that he has
become safe from its pursuit, and thereafter to
withdraw its assurance, seems to most of us unfair
and dishonest. But, while the chase is on, it does not

PAGE 16 —- OPINION AND ORDER

. shock us to have it extended beyond the time first
set, of, if it does, the stake forgives it.
Id. at 519, n.3 (citations omitted). Oregon cases have consistently distinguished between the
application of a statutory amendment to revive an already lapsed prosecution as opposed to an
unexpired prosecution. See Cookman, 324 Or. at 32; State v. Parker, 119 Or. App. 105, 110
(1993).4
In the instant proceeding, Erickson’s offenses were not time barred when the 1989
amendment became effective on October 3, 1989. Hence, application of the 1989 amendment
extending the limitation period to six years did not resurrect a lapsed prosecution. The six-year
limitation period adopted in 1989 expired no earlier than October 3, 1992. The 1991 amendment
was enacted before the six-year limitation expired on Erickson’s crime and therefore did not
operate to “revive” an expired prosecution.
Accordingly, trial counsel’s failure to argue that the statute of limitation expired as to all
conduct that occurred before September 29, 1988, did not fall below an objective standard of
reasonableness. At the time of Erickson’s trial, the Oregon Court of Appeals had already
rendered its decision in Dufort foreclosing the argument. For the same reason, Erickson has not
demonstrated that there is a reasonable probability that, but for counsel’s failure to make the
argument, the result of the proceeding would have been different. Accordingly, habeas relief is

* This Court is not convinced by Erickson’s argument that the holding in Dufort is
inconsistent with the Oregon Supreme Court’s statement in State v. Wimber, 315 Or. 103, 106
4 (1992), that OR. REV. STAT. § 131.125 “was not made retroactive until 1991.” See Pet’r’s
Reply (ECF No. 176) at 2-4. In Wimber, the court was not discerning legislative intent and likely □
was referring to the fact that the statute was not expressly made retroactive to revive a
time-barred offense until 1991.
PAGE. 17 — OPINION AND ORDER

not warranted. See Strickland, 466 U.S. at 687-88, 694 (explaining two-prong analysis for [AC
claims).
2. Failure to Argue that the Statute of Limitations Expired as to
the Attempt Count (Ground Seven)
In Lamb v. Coursey, 238 Or. App. 647, 652 (2010), the Oregon Court of Appeals held
that trial counsel rendered ineffective assistance of counsel by failing to make the “obvious
argument” that “because ORS 131.125(2)(d) does not expressly refer to attempt offenses, it
simply does not apply.” The court reasoned that “[i]f trial counsel had filed a motion to dismiss
the attempted rape charge for failure to comply with the three-year statute of limitations under
ORS 131.125(6), the charge would have been dismissed.” Lamb, 238 Or. App. at 656.
Based on this holding, Respondent concedes that Erickson’s conviction for Attempted
Rape in the First Degree should be vacated. See Resp’t Resp. to Pet’r’s Supp. Mem. (ECF No.
119) at 3, Op. and Order (ECF No. 124) at 18 & n.9. Accordingly, this Court grants habeas relief
as to Erickson’s conviction for Attempted Rape in the First Degree, as alleged in count eleven in
Deschutes County Circuit Court case no. 03FE0823ST. :

3. Failure to Adequately Argue that the Limitation Period Expired as to
Conduct that Occurred in the Spring of 1989 Because A.I. Reported
the Abuse to a Utah School Counselor (Ground Eight)
All. testified that in 1992 or early 1993 she told a school counselor in Utah about
Erickson’s sexual abuse. Resp’t Ex. 103 at 136, Ex. 104 at 208-10. Based on this testimony,
defense counsel moved for a judgment of acquittal, arguing that Or. REV. STAT. § 131.125(2)
requires the state to commence a prosecution within six years of a report of the offense to law
enforcement or “other governmental agency.” Resp’t Ex. 105 at 34-40. Counsel effectively □

PAGE 18 - OPINION AND ORDER □

argued that because OR. REV. STAT. § 131.125(2) does not expressly limit the term “other
governmental agency” to local agencies, it should extend to “a school district in another state,
such as Utah.” Resp’t Ex. 105 at 39. Counsel concluded that A.I.’s 1992 report of the abuse
therefore triggered the six-year statute of limitations and the charges against Erickson were time
barred. Id. 39-40.
The trial court denied the motion because (1) the limitation period was not triggered until
the State of Oregon received the report, (2) a school counselor is not a “governmental agency,”
and (3) the school counselor “may” have had a confidential obligation not to disclose the
communication. Jd. at 42-44. The court explained that “the key piece here is that . . . this school
counselor is not a governmental agency, and if he or she was, they’re not a governmental agency
in the [S]tate of Oregon.” Resp’t Ex. 105 at 44.
Erickson argues that had counsel thoroughly examined the relevant law he would have
“avoided the trial court’s ruling that schools were not ‘other governmental agencies’” and
discovered that Utah teachers have a duty to disclose under Utah law. Pet’r’s Supp. Br. at 5.
Erickson relies on the holding in State v. Walker, 192 Or. App. 535, 548-49 (2004) that the

phrase “other governmental agency” refers to a governmental agency with an obligation to report
instances of child abuse under OR. REV. STAT. § 419B.010, including teachers. Pet’r’s Br. in
Supp. at 12; Pet’r’s Supp. Br. at 5. Additionally, Erickson notes that Utah has a mandatory
reporting law that would apply to a school counselor. Pet’r’s Br. in Supp. at 13, citing Utah Code
Ann. § 62A-4a-403; Pet’r’s Supp. Br. atS. =

Although the court in Walker defined “other governmental agency” to include teachers, it
did not address the central issue in Erickson’s case—whether a report of sexual abuse to a Utah

PAGE 19 —- OPINION AND ORDER

school official, who has no obligation to disclose pursuant to OR. REV. STAT. § 419B.010,
triggers the six-year limitation period when no Oregon official received a report of the abuse.
Erickson offers no case law to support such a broad interpretation of the phrase “other
governmental agency.” The fact that Utah has a mandatory reporting statute does not impact the
scope of OR. REV. STAT. § 131.125(2).
Based on the foregoing, Erickson has failed to demonstrate that counsel’s performance
fell below an objective standard of reasonableness. On the contrary, defense counsel correctly
anticipated the decision in Walker defining “other governmental agency” to include teachers and
argued that the term should be interpreted even more broadly to include out-of-state school
officials. Further, Erickson has failed to demonstrate that there is a reasonable probability that
had counsel more thoroughly researched Oregon and Utah law, the result of the proceeding
would have been different. Accordingly, the Court denies habeas relief on this ground. See
Strickland, 466 US. at 687-88, 694.
4. Failure to Seek Dismissal on the Basis that the Statute
of Limitations was Triggered in 1990 When State Law
Enforcement Received a Report of Abuse (Grounds 4 & 9)

In Erickson’s “pro se” ground four, he alleges that trial counsel was ineffective with
respect to the “Statute of limitations do [sic] to the case in 1990 with C.S.D. questioning the
victim.” Pet’r’s Am. Pet. at 4. In his Amended Petition, Erickson alleges under the caption
“Supporting Facts Grounds 6-9” that trial counsel failed to “investigate and argue . a prior
‘disclosure’ A.J. made to a social worker in Oregon.” Jd. at 6.

In support of this ground, Erickson obtained records from the Oregon Department of
Human Services pertaining to a 1990 investigation initiated in response to allegations by

PAGE 20 - OPINION AND ORDER

Erickson’s stepchildren T.H. and B.H. that Erickson physically and sexually abused them. The
children subsequently recanted the allegations and the criminal prosecution was dismissed. The
documents include CSD records and a sheriff report concerning T.H.’s disclosure of the sexual
abuse and her statements that Erickson also sexually abused A.I. Pet’r’s Second Supp. Br., Exs.
1-4. Erickson summarizes this new evidence as follows:
In November 1990, Mr. Erickson was married to Ronda
Erickson. She and her children T.H. and B.H. were living with Mr.
Erickson at a residence off of Elsinore Rd. in Bend. On the 27th,
T.H. reported to a school teacher or counselor, Mr. Smith, that the
reason she had bruises and scrapes on her right knee was her father
kicked her with his boots ... when she was trying to escape from
his sexual advances. Mr. Smith contacted Stephanie
Jernstedt-Cameron, a case worker at CSD in Deschutes County.
Her intake notes state: “He [Mr. Erickson] also allegedly sexually
abused his own daughter and a friend of [T.H.'s]. Brother
witnessed assault and part of sexual abuse.” At a later interview
with officer Hirscht of the Deschutes County Sheriff's Office, Ms.
Jernstedt-Cameron learned additional information that was related
in the officer’s report.
The sheriffs report states that she reported prior incidents
of sexual abuse. It also said this:
During Christmas time in 1988, Tom’s 6 year old
daughter, [A.I] was visiting from Utah. [T.H_] said
that she went into the bedroom and her dad had his
pants down and was laying on top of [A.1.]. She did
not see what he was actually doing.
Mr. Erickson denied the allegations when confronted later that day.
He also mentioned that he had recently been living with a girlfriend _
Pauline Cottrell and her young children and invited them to talkto
them about his appropriate behavior around children.
Ms. Jernstedt-Cameron’s notes from the interviews on
November 27 reflect that she learned the name of Paula Cottrell’s
daughter [C.C.], the name of Mr. Erickson’s daughter AI □
A.I.’s mother’s name and that they lived in Monroe Utah. There is

PAGE 21 — OPINION AND ORDER

also a note regarding a Solar Dr. residence associated with “A.I.”
and “last Spring” and “Sweethome” and “2nd grade.” Finally, there
is a 1-800 number appearing to be associated with Monroe Utah
and an address associated with Pauline Cottrell.
Ms. Jernstedt-Cameron’s file (what portion of it
obtained pursuant to the subpoena) reflects that she met with TH at
least twice thereafter, on December 19, 1990 and March 28, 1991.
There are no notes in the file regarding these meetings and no
reports. A [sic] an application for services was made in December
pursuant to a meeting she had with just Ronda and it notes that a
protective services investigation resulted in petitions being filed in
Juvenile Court.
The allegations also led to the county charging Mr.
Erickson with criminal offenses related to the T.H.’s allegations in
April 1991, after Ms. Jernstedt-Cameron’s last meeting with T.H.
on March 28, 1991. That criminal case was dismissed, however, on
August 21, 1991, after a settlement conference hearing on
September 20, 1991. According to Ms. Jernstedt-Cameron’s
correspondence dated August 26, 1991, “[t]he criminal case was
‘dismissed last week as both the children recanted.”
Pet’r’s Second Supp. Br. at 2-4 (emphasis added, record citations omitted).
Erickson argues that T.H.’s disclosure of Erickson’s abuse of A.I. was sufficient to trigger
the statute of limitations. He contends that had trial counsel taken greater investigatory steps, he
would have uncovered this information and therefore asserted a complete statute of limitations
defense. Id. at 11-12.
Under Oregon law, a report of sexual abuse triggers the statute of limitations if it is an
““actual communication of the facts that form the basis for the particular offense reported.” State
v. Eladem, 290 Or. App. 212, 217, rev. denied, 363 Or. 119 (2018), quoting State v. Hutchinson,
176 Or. App. 363, 368 (2001). “[T]he context of the ‘report’ can matter.” Eladem, 290 Or. App.
at 220. “A report that is ‘too vague’ or ‘ambiguous’ as to the specific conduct or the timeframe in

PAGE 22 —- OPINION AND ORDER

which that conduct occurred is not sufficient to trigger the statute of limitations.” Jd When a
report is made, the state is not on inquiry notice as to facts not reported. Hutchinson, 176 Or.
App. at 368-69.
This Court concludes that T.H.’s disclosures are ambiguous when considered in context.
T.H. recanted her allegations and the criminal prosecution against Erickson was dismissed. There
is no evidence that A.I. or her mother confirmed the abuse to Oregon officials after T.H.’s
disclosure. On the contrary, A.I. testified at a pretrial hearing that she did not talk to the police
when she was a child about Erickson’s abuse. Resp’t Ex. 103 at 136. A.I. testified that she told
her mother, but that she did not believe her. Jd Similarly, C.C., Erickson’s stepdaughter, testified
that she was interviewed in 1990 related to the investigation of T.H.’s allegations, and that she
falsely denied being abused by Erickson. Resp’t Ex. 103 at 42-43, 173.
Based on this record, Erickson has failed to demonstrate that T.H.’s statements triggered
the statute of limitations or that, had trial counsel made a more thorough investigation, he would
have discovered evidence to support the assertion that the State of Oregon was aware of
allegations that Erickson sexually abused A.I. in 1990. Further, Erickson has failed to
demonstrate that counsel’s strategic decision to pursue the defense that the limitation period
commenced when A.I. disclosed the abuse to the Utah school counselor, rather than based on the
1990 CSD investigation was unreasonable.

Accordingly, Erickson has failed to demonstrate that trial counsel’s performance fell
below an objective standard of reasonableness, or that there is a reasonable probability that, but
for counsel’s deficient performance, the result of the proceeding would have been different. See
Benmore, 788 F.3d at 1169 (holding that when claim is that counsel failed to adequately
PAGE 23 — OPINION AND ORDER .

investigate a defense, a petitioner must demonstrate a reasonable probability that counsel would
have made a different decision had he investigated, and a reasonable probability that the different
decision would have altered the outcome).
| Actual Innocence (Ground Ten)
Erickson asserts his actual innocence in two respects. First, he contends that he has made
a “colorable showing” of actual innocence sufficient to excuse the procedural default of ground
one (failure to disclose exculpatory evidence). Pet’r’s Sur-Reply (ECF No. 176) at 8.
Second, he alleges a “freestanding” claim of actual innocence based on his contention that “he
had amnesty from prosecution, conviction and punishment because the applicable statute of
limitations had expired prior to the state’s filing of the charges.” Pet’r’s Supp. Br. at 6.
Erickson’s argument fails in both respects.
A. Colorable Showing of Actual Innocence to Overcome Procedural Default
A colorable claim of actual innocence serves as a gateway though which a petitioner may
pass to overcome a procedural default. Schiup v. Delo, 513 U.S. 298, 315 (1995). “[T]lenable
actual-innocence gateway pleas are rare.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). In
order to make a colorable claim of actual innocence, a petitioner must present new, reliable
evidence to prove that “‘it is more likely than not that no reasonable juror would have convicted
the petitioner.” /d. at 395 (quoting Schlup, 513 U.S. at 329). “‘To be credible, such a claim
requires [the] petitioner to support his allegations of constitutional error with new reliable
evidence—whether it be exculpatory scientific evidence, trustworthy eye-witness accounts, or
critical physical evidence—that was not presented at trial.” Cook v. Schriro, 538 F.3d 1000, 1028
(9th Cir. 2008) (quoting Schlup, 513 U.S. at 324).

PAGE 24 — OPINION AND ORDER □

Erickson does not allege that he is factually innocent of the offenses against A.I. Rather,
he alleges that the prosecution was time barred. Hence, his argument is one of “legal innocence”
not “factual innocence.” Moreover, as discussed above, he has failed to demonstrate that the
prosecution was time barred. Accordingly, he has failed to satisfy the gateway showing under
Schlup necessary to overcome his procedural default.
B. Freestanding Claim of Actual Innocence □
The Supreme Court has yet to hold that a freestanding claim of actual innocence is
cognizable as an Eighth or Fourteenth Amendment claim in a federal habeas proceeding.

MeQuiggin, 133 S.Ct. at 1931; House, 547 U.S. at 554-55; Jones, 763 F.3d at 1246. However, on
several occasions both the Supreme Court and the Ninth Circuit have assumed, without deciding,
that such a claim may exist. House, 547 U.S. 554-55; Herrera v. Collins, 506 U.S. 390, 417-19 □

& 427 (1993); Jones, 763 F.3d at 1246; see also Roberts v. Howton, 13 F.Supp.3d 1077, 1113
(D.Or. 2014) (collecting cases). In so doing, the courts have opined that a petitioner must “‘go
beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably
innocent.’” Jones, 763 F.3d at 1246 (quoting Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir.
1997)); see also House, 547 U.S. at 555 (Supreme Court precedent implies that freestanding
claim of actual innocence requires more convincing proof of innocence than Schlup). □
As discussed above, Erickson has failed to make a colorable showing of actual innocence.
For the same reasons, Erickson has failed to establish a freestanding claim of actual innocence.

Accordingly, habeas relief is not warranted.
Hf

PAGE 25 — OPINION AND ORDER

CONCLUSION
Based on the foregoing, this Court GRANTS Erickson’s Amended Petition (ECF No.
126) as to ground seven only (ineffective assistance of counsel for failing to argue that the
applicable limitation period had expired on the charge of Attempted Rape in the First Degree).
This Court VACATES Erickson’s conviction only for Attempted Rape in the First Degree, as
alleged in count eleven of the indictment in Deschutes County Circuit Court case no.
03FE0823ST. This Court DENIES Erickson’s Amended Petition (ECF No. 126) as to all
remaining grounds, .
This Court GRANTS a certificate of appealability as to Erickson’s statute-of-
limitation-based ineffective assistance of trial counsel claims.
IT IS SO ORDERED.
DATED this tA Say of January, 2020.

Karin J. Immergut
United States District Judge

PAGE 26 — OPINION AND ORDER vos

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10391560. Public record. Not legal advice.