Tapia-Martinez v. Taylor

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JOAQUIN TAPIA-MARTINEZ,

Case No. 3:17-cv-01307-HZ

Petitioner,

OPINION AND ORDER

v.

JERI TAYLOR,

Respondent.

Brian Patrick Conry

Brian Patrick Conry, P.C.

534 SW Third Ave., Suite 711

Portland, Oregon

Attorney for Petitioner

Ellen F. Rosenblum, Attorney General

James M. Aaron, Assistant Attorney General

Department of Justice

1162 Court Street NE

Salem, Oregon 97310

Attorneys for Respondent

HERNANDEZ, District Judge.

Petitioner brings this habeas corpus case pursuant to 28

U.S.C. § 2254 challenging the legality of his state-court

convictions for Sodomy. For the reasons that follow, the Petition

for Writ of Habeas Corpus (#32-1) is denied.

BACKGROUND

When CA was 12 years of age, she related to her grandmother

that a man who had previously lived with the family had

repeatedly sexually abused her when she was five years old.

During the time of the abuse, CA and her family lived with

several other families at the Wright Street home owned by Gabino

Martinez and his wife, Adriana. CA’s mother, Jennifer Martinez,

routinely asked Adriana to babysit CA after school. Petitioner

was also living in the home and did not work, leaving him as the

only male in the home until the others came home from work. Trial

Transcript, pp. 292-93. According to Jennifer, her children

interacted with Petitioner “a lot” and spoke with him in broken

English. Id at 299, 310.

When CA disclosed the abuse, she was able to provide a

physical description of her assailant that included his hair

style as a “buzz cut” and that he had a dimple on his chin. Id at

228-29. CA informed her grandmother of the room her assailant

occupied as well as its contents, which included a glass table

and a “big stereo.” Id at 231-33, 281. She also claimed that

Petitioner spoke to her in broken English that “wasn’t perfect”

and “sounded funny.” Id at 347, 376-77.

Jennifer found a picture associated with a drug arrest from

the Wright Street home which represented an array of six or nine

individuals. Id at 238. When CA saw the photographs, she “just

gasped for air . . . and just started crying. And, ‘That’s him.

That’s him.’” Id at 288. CA had identified Petitioner as her

abuser and, according to Jennifer, “Nobody pointed at the

picture. Nobody wanted it to be him. He was family.” Id. Based on

CA’s allegations, the Washington County Grand Jury indicted

Petitioner on four counts of Sodomy in the First Degree and four

counts of Sexual Abuse in the First Degree, the latter of which

the State dismissed prior to trial. Id at 16; Respondent’s

Exhibit 110, p. 2.

At trial, the defense argued that CA’s mother and

grandmother tainted her identification. It theorized that CA had

mistakenly identified Petitioner as her abuser, and pointed out

another resident of the Wright Street home, Ricardo Martinez

(“Ricardo”), was the more likely perpetrator despite the fact

that Ricardo had, according to Jennifer, only lived at the home

for a period of one month. Trial Transcript, p. 305. Ricardo was

accused of sexually abusing his own minor daughter, IM. According

to IM, her father and another man abused her at Ricardo’s

girlfriend’s house beginning when she was four or five years of

age. Id at 199-204. The defense also pointed out that Gabino had

been convicted of sexually molesting a teenage girl, and had been

accused of molesting IM. Id at 633.

The defense also offered the testimony of Petitioner’s

cousin, Osvaldo Martinez (“Osvaldo”), to bolster its theory.

Osvaldo testified that the bedroom CA identified as belonging to

Petitioner at the Wright Street home was not, in fact, the

bedroom Petitioner occupied.1 He also testified that Petitioner

did not speak English. Id 510. With respect to Ricardo, Osvaldo

testified that he spoke English and that he did not work. Id at

512.

Petitioner took the stand at his trial and denied abusing

CA. He claimed that he had never taken care of her, nor had he

ever interacted with her. Id at 359. He asserted that he could

not have interacted with her because he spoke only Spanish and

had only ever heard CA speak in English. Id at 559-60.

A non-unanimous jury convicted Petitioner of three counts of

Sodomy in the First Degree, and the jury acquitted him of the

remaining Sodomy I charge where CA testified that she could only

recall three discrete incidents of abuse. Id at 354-55, 667-669.

As a result, the trial court sentenced him to consecutive

sentences totaling 300 months in prison. Id at 698.

1 The defense also wished to call Gabino, believing that he would testify much

as Osvaldo did. Trial Transcript, p. 547. However, because Gabino was a

suspect in IM’s abuse, he expressed his intention to exercise his Fifth

Amendment rights if called to testify. Id at 546. As a result, the defense

never called him.

Petitioner directly appealed but, aside from an attorney fee

issue not relevant to this habeas case, the Oregon Court of

Appeals affirmed the trial court’s decision without discussion.

State v. Tapia-Martinez, 266 Or. App. 701, 338 P.3d 801 (2014).

Petitioner sought review in the Oregon Supreme Court, which

denied his Petition. 357 Or. 112, 346 P.3d 1213 (2015).

Petitioner next filed for post-conviction relief (“PCR”) in

Umatilla County. In his pro se PCR Petition, he alleged that his

trial attorney performed ineffectively by not calling Adriana to

testify because she would have established that Petitioner could

not have molested CA. Respondent’s Exhibit 109. The PCR court

appointed counsel to represent Petitioner, and counsel filed an

Affidavit stating that she had: (1) employed an investigator to

speak with Adriana; (2) spoken with Petitioner by phone several

times; and (3) met with Petitioner in person. Counsel did not

believe that she could state a valid PCR claim on Petitioner’s

behalf so, consistent with the requirements of 138.590(5), she

filed an Affidavit to this effect with the PCR court.

Respondent’s Exhibit 110. Counsel did, however, advise the PCR

court that Petitioner had expressed a desire to file pro se

claims by way of a Church motion.2 It does not appear that

Petitioner ever filed such a motion.

2 In Church v. Gladden, 244 Or. 308, 311-21, 417 P.2d 993 (1966), the Oregon

Supreme Court held that where a litigant wishes to pursue claims that his

attorney refuses to pursue, he must inform the court of an attorney’s failure

to follow a legitimate request, and he may ask to have counsel replaced or ask

the court to require the attorney to comply with the litigant’s request.

The PCR court held a hearing where Petitioner advised it

that he had hired another attorney to assist him with his case,

but he was unable to identify that person. Petitioner also

claimed that he had witnesses who never appeared in court that

could have been helpful to his case. PCR counsel stated at the

hearing that she tasked her investigator with meeting with

Petitioner’s family, and that she spoke with Petitioner’s trial

attorney about the witnesses Petitioner believed could have been

helpful to his defense. According to PCR counsel, trial counsel

had interviewed those witnesses despite Petitioner’s assertion to

the contrary, and PCR counsel, herself, did not believe the

witnesses would have been helpful to the defense. Respondent’s

Exhibit 113.

The PCR court intended to dismiss the case, but deferred its

dismissal for 30 days to allow Petitioner’s new attorney to file

a notice of appearance. When that did not happen, the judge

dismissed the case for failure to state a claim. Respondent’s

Exhibit 112. No appeal is permitted from such a judgment of

dismissal in Oregon. ORS 138.525(3).

Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on

August 22, 2017, and the Court appointed counsel to represent

him. With the assistance of counsel, Petitioner argues that:

(1) his trial attorney was ineffective for failing to present

additional witnesses at trial who might have swayed the outcome

of the case; and (2) his conviction by a non-unanimous jury

violates his Sixth and Fourteenth Amendment rights. Respondent

asks the Court to deny relief on the Amended Petition because:

(1) Petitioner failed to fairly present his ineffective

assistance of counsel claims to Oregon’s state courts, leaving

them procedurally defaulted; (2) Petitioner is unable to excuse

his procedural default through a showing of cause and prejudice;

and (3) the Supreme Court’s recent decision prohibiting non-

unanimous jury verdicts does not entitle Petitioner to habeas

corpus relief.

DISCUSSION

I. Unargued Claims

With the assistance of counsel, Petitioner filed an Amended

Petition in which he raises a variety of claims. While somewhat

difficult to ascertain, in his briefing Petitioner argues that

his non-unanimous verdict is unconstitutional (Ground III), trial

counsel failed to call Adriana Martinez and Dr. Daniel Reisberg

(Grounds IV(a-b)), and failed to call additional potential

defense witnesses to testify regarding: Petitioner’s lack of

opportunity to abuse CA (Ground IV(c)(1)), Petitioner’s lack of

English speaking ability (Ground IV(c)(2)), CA’s purported

misidentification of Petitioner’s bedroom at the Wright Street

home (Ground IV(c)(3)), Petitioner’s character for acting in a

sexually appropriate manner (Ground IV(c)(4)), the lack of any

interactions between Petitioner and CA (Ground IV(c)(5)), and the

English speaking skills of other males living in the home (Ground

IV(c)(6)). Where Petitioner does not argue the merits of the

remaining claims in his Amended Petition, he has not carried his

burden of proof with respect to these unargued claims. See Silva

v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (Petitioner bears

the burden of proving his claims).

II. Exhaustion and Procedural Default—IAC Claims

A habeas petitioner must exhaust his claims by fairly

presenting them to the state's highest court, either through a

direct appeal or collateral proceedings, before a federal court

will consider the merits of those claims. Rose v. Lundy, 455 U.S.

509, 519 (1982). "As a general rule, 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 'affording the state courts a meaningful

opportunity to consider allegations of legal error.'" Casey v.

Moore, 386 F.3d 896, 915-916 (9th Cir. 2004) (quoting Vasquez v.

Hillery, 474 U.S. 254, 257, (1986)).

If a habeas litigant failed to present his claims to the

state courts in a procedural context in which the merits of the

claims were actually considered, the claims have not been fairly

presented to the state courts and are therefore not eligible for

federal habeas corpus review. Edwards v. Carpenter, 529 U.S. 446,

453 (2000); Castille v. Peoples, 489 U.S. 346, 351 (1989). In

this respect, a petitioner is deemed to have "procedurally

defaulted" his claim if he failed to comply with a state

procedural rule, or failed to raise the claim at the state level

at all. Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson,

501 U.S. 722, 750 (1991). If a petitioner has procedurally

defaulted a claim in state court, a federal court will not review

the claim unless the petitioner shows "cause and prejudice" for

the failure to present the constitutional issue to the state

court, or makes a colorable showing of actual innocence. Gray v.

Netherland, 518 U.S. 152, 162 (1996); Sawyer v. Whitley, 505 U.S.

333, 337 (1992); Murray v. Carrier, 477 U.S. 478, 485 (1986).

In this case, Petitioner argues two general claims of

ineffective assistance of counsel wherein he faults his trial

attorney for not calling witnesses who, he claims, could have

helped establish his misidentification defense. First, believes

that Dr. Daniel Reisberg, a memory expert, could have cast doubt

on CA’s identification. He asserts that instead of calling Dr.

Reisberg to provide expert testimony at trial, counsel sought to

cross examine Detective Verboort and CARES interviewer Kimberly

Goldstein about the reliability of the identification which led

them to improperly vouch for CA’s credibility. Second, he argues

that trial counsel failed to call additional witnesses,

principally Adriana Martinez, Serafin Martinez, and Maria

Martinez, who could have helped establish that he was not the

perpetrator. Where Petitioner did not present any claims during

his PCR proceedings, and as the time for doing so has passed,

these claims are procedurally defaulted.

Petitioner does not dispute that he procedurally defaulted

these claims, but asks the Court to excuse his default because it

arose directly from PCR counsel’s ineffective assistance when she

declined to present them. Traditionally, the performance of PCR

counsel could not be used to establish cause and prejudice to

excuse a procedural default. Coleman v. Thompson, 501 U.S. 722,

753-54 (1991) (only the constitutionally ineffective assistance

of counsel constitutes cause); Pennsylvania v. Finley, 481 U.S.

551, 556 (1987) (there is no constitutional right to counsel in a

PCR proceeding). However, in Martinez v. Ryan, 566 U.S. 1, 4

(2012), the Supreme Court found “it . . . necessary to modify the

unqualified statement in Coleman that an attorney’s ignorance or

inadvertence in a postconviction proceeding does not qualify as

cause to excuse a procedural default.” Id at 8. It concluded,

“Inadequate assistance of counsel at initial-review collateral

proceedings may establish cause for a prisoner’s procedural

default of a claim of ineffective assistance at trial.” Id.

In order to establish cause to excuse his default pursuant

to Martinez, Petitioner must show first that his underlying claim

of ineffective assistance of trial counsel is substantial insofar

as it has “some merit.” Next, he must demonstrate that his PCR

attorney was ineffective under the standards of Strickland v.

Washington, 466 U.S. 668 (1984) for failing to raise the claim.

“[T]o fulfill this requirement, a petitioner must not only show

that PCR counsel performed deficiently, but also that this

prejudiced petitioner, i.e., that there was a reasonable

probability that, absent the deficient performance, the result of

the post-conviction proceedings would have been different.”

Runningeagle v. Ryan, 825 F.3d 970, 982 (9th Cir. 2017)

(quotation omitted). Such a finding, of course, would necessarily

require the Court to conclude that there is a reasonable

probability that the trial-level ineffective assistance claim

would have succeeded had it been raised. Id.

A. Dr. Reisberg

Although CA testified that the sexual abuse she suffered

occurred while she was in kindergarten in 2004-2005, she did not

report the sexual abuse until 2011. During the intervening

period, she had repressed the memory. She did not recall the

sexual abuse even when Petitioner moved in for short time with

her family at their Tanasbourne home (after leaving Wright

Street). She testified that it was not until she was either 10 or

11 years old, the memory of abuse “came up in my mind” and she

“couldn’t stop thinking about it.” Trial Transcript, pp. 355-56.

Petitioner contends that, as a memory expert, Dr. Reisberg could

have testified in general terms that a repressed traumatic memory

of sexual abuse would likely come flooding back into the victim’s

consciousness if she were forced to live with the perpetrator

again.

Petitioner claims it is particularly perplexing that trial

counsel did not call Dr. Reisberg because he had sought funds for

such a purpose. To establish that the omission was prejudicial,

he points to Dr. Reisberg’s writings on memory and testimony in

other cases, and he reasons from these sources that Dr. Reisberg

could have provided testimony that would have been helpful to the

defense. He maintains that in lieu of calling Dr. Reisberg,

counsel attempted to elicit testimony about false memories from

Detective Verboort and CARES interviewer Goldstein, with the

former expressing confidence in CA’s identification and the

latter calling it a “good, sound identification” that was not

“soft” or “squishy.” Trial Transcript, pp. 413-14, 467-68.

In the absence of a declaration from trial counsel,3 it is

not clear from the record why he declined to call Dr. Reisberg.

Although counsel requested funds to retain Dr. Reisberg, it does

not appear that this request was ever approved. Amended Petition

(#32-1), p. 71. It also does not appear that Dr. Reisberg ever

provided specific input as to this case other than advising trial

counsel that he believed he could “be very useful to the defense

at trial.” Id at 70. Petitioner’s speculation as to how Dr.

Reisberg might have applied his expert knowledge to his case if

called as a witness is not sufficient to establish prejudice.

Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001); Grisby v.

Blodgett, 130 F.3d 365, 373 (9th Cir. 1997); see also Dows v.

3 Counsel for Respondent contacted Petitioner’s trial attorney, who is now

employed by the Federal Public Defender, but trial counsel indicated that his

current employer does not permit communications about former clients absent a

court order. Sur-reply (#35), p. 7 n. 1. Respondent only intends to seek such

an order if Petitioner is able to excuse his procedural default or if the

Court orders an evidentiary hearing.

Wood, 211 F.3d 480, 486-87 (9th Cir. 2000) (Petitioner's self-

serving affidavit regarding potential testimony of another is

insufficient to prove ineffective assistance of counsel claim).

Even if Petitioner’s speculation based upon Dr. Reisberg’s

writings and involvement in other cases could be sufficient to

establish prejudice, the sources Petitioner references to

establish Dr. Reisberg’s opinions generally date to after

Petitioner’s own trial.

Moreover, Petitioner’s claim regarding Dr. Reisberg arises

out of his belief that the trauma CA would have experienced by

virtue of having to live with Petitioner at the Tanasbourne home

would have necessarily triggered her repressed memory. But

Jennifer testified that CA was mostly at her grandmother’s home

during the short time Petitioner lived at the Tanasbourne home.

Trial Transcript, p. 319. Jennifer stated CA “was never really

there when he was there” and Jennifer “c[ouldn’t] remember times

when [CA] was around him that time period.” Id at 320. Jennifer

actually kept CA’s room set up for Petitioner to spend the night,

and she could not think of a single night that both CA and

Petitioner spent the same night at the Tanasbourne home. Id. In

this respect, an expert on repressed memory opining on

cohabitation as a traumatic trigger might not have been helpful

given the unique facts of this case. For all of these reasons,

Petitioner fails to establish that his claim is substantial and

is unable to excuse his procedural default.4

B. Adriana Martinez

Petitioner next claims that PCR counsel should have pursued

a claim that trial counsel failed to call Adriana to support his

defense of misidentification. PCR counsel instructed her

investigator to contact Adriana, and Adriana provided information

that, at first glance, appears to be beneficial to Petitioner’s

defense.5 According to Adriana, she was tasked with babysitting

CA at the Wright Street residence Monday through Friday between

the hours of 6:00 a.m. and 3:00 p.m. from approximately 2003-

2005. During that time frame, Petitioner lived in the home for

what Adriana believed to be a period of more than one year.

Adriana claimed that she never left CA alone, that CA never spent

any time alone with Petitioner, she never left the house to run

errands and, instead, always stayed at the house with CA until

4 To the extent Petitioner argues that Verboort and Goldstein would not have

had an opportunity to bolster CA’s identification had counsel called Dr.

Reisberg, this does not appear to be the case. The prosecutor elicited the

testimony Petitioner finds objectionable from Verboort and Goldstein when

Petitioner’s attorney attempted to challenge the identification as the main

thrust of the defense. Trial Transcript, pp. 413-14, 467-68. Dr. Reisberg’s

appearance challenging CA’s identification would not have mooted this issue.

To the extent Petitioner argues that the testimony of Verboort and Goldstein

amounted to inadmissible vouching, the Oregon state courts disagreed as a

matter of state law and the Supreme Court has “repeatedly held that a state

court’s interpretation of state law, including one announced on direct appeal

of the challenged conviction, binds a federal court sitting in habeas corpus.”

Bradshaw v. Richey, 546 U.S. 74, 76 (2005).

5 Adriana also prepared a Declaration for purposes of this case. Amended

Petition (#32-1), p. 33. That Declaration was not available to PCR counsel

when she made the decision not to pursue this claim, and Adriana does not

state that PCR counsel and her investigator improperly reported her

recollections from 2016.

Jennifer picked her up. Amended Petition (#32-1), p. 247. She

claimed that she did not think Petitioner could have committed

the crimes in question because CA was always within her eyesight,

and she never witnessed any wrongdoing on Petitioner’s part. Id

at 248. She also stated that Petitioner occupied the bedroom next

to the kitchen, not the bedroom at the back of the house as CA

testified. Id.

Respondent asserts that PCR counsel reasonably declined to

press a claim for failing to call Adriana as a witness because

her testimony was essentially identical to that of her husband,

Gabino. However, as mentioned earlier in this Opinion, although

defense counsel intended to call Gabino to testify, it did not do

so when Gabino expressed his intention to invoke his Fifth

Amendment rights. Because Adriana’s testimony could not have been

cumulative of testimony Gabino never provided, PCR counsel could

not have made a reasonable decision to refrain from raising a

claim on this basis.

However, the timeframe Adriana claimed to have watched over

CA during her interview with the PCR investigator does not match

up with CA’s allegations. Adriana’s statements to the PCR

investigator addressed only the time during which CA did not

actually live at the Wright Street home. Specifically, Adriana

claimed that Jennifer would drop CA off at the Wright Street home

Mondays through Fridays at 6:00 a.m. and pick her up at 3:00 p.m.

Adriana identified CA as being three years of age at the time. Id

at 248. By contrast, CA testified that when the abuse occurred:

(1) she was five and six years old and attending kindergarten

during the day; and (2) she and her family resided at the Wright

Street home, something that would not have entailed Jennifer

dropping her off with Adriana in the mornings and picking her up

at 3:00. Trial Transcript, pp. 341-44, 355, 419; see also id at

270 (Jennifer testifies that her family was living in the Wright

Street home while CA was in kindergarten).

Although there are no affidavits from trial counsel or PCR

counsel regarding the decision not to pursue testimony from

Adriana, PCR counsel’s investigation revealed that Adriana was

prepared to testify about the absence of abuse during a time

frame that did not correspond to CA’s allegations. In this

respect, PCR counsel’s performance did not fall below an

objective standard of reasonableness when she concluded, after

consulting with trial counsel and her own investigator, that she

could not raise a viable claim based upon Adriana’s

recollections. Petitioner is therefore unable to excuse his

procedural default as to this claim.

C. Serafin and Maria

Petitioner also maintains that PCR counsel should have

raised an ineffective assistance of counsel claim pertaining to

trial counsel’s failure to call Serafin Martinez and Maria Olivia

Martinez. Serafin submitted a Declaration for this habeas corpus

case where he claims that, had he been called as a witness, he

would have testified that he often visited the Wright Street

home, Petitioner does not speak English unlike some of the other

men who lived at the Wright Street home, Petitioner started

living at the Wright Street home in May of 2005 or after, Ricardo

and Gabino were both accused of sex crimes involving minors

(Gabino was convicted), and the room CA identified as belonging

to Petitioner was actually the room Gabino and his wife occupied

at the Wright Street House. Petition (#32-1), pp. 20-24. Maria,

who visited the Wright Street home once a month during at least a

portion of the time Petitioner lived there, declares that she

could have testified that she never heard Petitioner speak

English, did not witness him interact with CA, and that he was

sexually appropriate with children. Id at 27-30.

Serafin asserts that Petitioner moved into the Wright Street

residence “sometime in May of 2005 or sometime thereafter.”

Amended Petition (#32-1), p. 21. Petitioner believes this was

important to his case because his moving in coincided with the

end of CA’s abuse that she claimed terminated at the end of her

kindergarten year. However, Serafin’s recollection five years

after Petitioner’s trial, and as a non-resident of the home, is

not at all consistent with, and less persuasive than, Jennifer’s

recollection. She testified in 2012 that Petitioner was already

living at the Wright Street home when she and her children moved

in, and he lived there during the time she and her family resided

there, which was approximately two years.6 Trial Transcript,

pp. 266-67, 270, 284, 303. But even assuming the jury would have

credited Serafin’s account regarding timing, Jennifer estimated

that CA’s kindergarten year ended between the middle and end of

June 2005. Trial Transcript, p. 330. CA thought that the last of

the three incidents of abuse she recalled ended close to the time

she finished kindergarten, or possibly afterwards. Id at 355.

Consequently, Petitioner’s presence in the house beginning in May

and the three incidents of abuse to which CA testified, even if

they stopped when she finished kindergarten, could have

overlapped by almost two months such that Serafin’s timeframe

would not have been strong evidence of Petitioner’s innocence.

With respect to the remainder of Serafin’s and Maria’s

Declarations, nothing constitutes new evidence that trial counsel

did not offer, or that the State, itself, did not elicit.

Moreover, trial counsel interviewed Serafin and Maria and

determined that their testimony would not be helpful.

Respondent’s Exhibit 113, p. 3. PCR counsel spoke directly with

trial counsel about these witnesses and, based upon that

conversation as well as her own findings through her

investigator, determined that they would not have assisted the

defense. Id. Petitioner fails to establish how calling Serafin

and Maria would have introduced evidence that could have produced

a different result at trial. Accordingly, he cannot satisfy

6 CA also testified that during her kindergarten year, Petitioner was living

either the performance or prejudice prongs of Strickland so as to

excuse his procedural default under Martinez.

III. The Merits: Non-Unanimous Guilty Verdict

A. Standard of Review

An application for a 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

in the Wright Street house. Trial Transcript, p. 341.

governing 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. Twenty-eight U.S.C. § 2254(d)

"preserves authority to issue the writ in cases where there is no

possibility fairminded jurists could disagree that the state

court's decision conflicts with [the Supreme] Court's precedents.

It goes no farther." Harrington v. Richter, 562 U.S. 86, 102

(2011).

B. Analysis

In his remaining claim, Petitioner argues that his non-

unanimous convictions violate his Sixth and Fourteenth Amendment

rights. On April 20, 2020, the Supreme Court determined that the

Sixth Amendment requires a jury to deliver a unanimous verdict in

order to convict a criminal defendant of a serious criminal

offense. Ramos v. Louisiana, 140 S.Ct. 1390 (2020). However, for

almost 40 years prior to the Ramos decision, the Supreme Court’s

jurisprudence plainly provided that non-unanimous jury verdicts

in criminal cases were permissible. Apodaca v. Oregon, 406 U.S.

404 (1972). Given this history, Petitioner cannot establish that

Oregon’s state courts unreasonably applied clearly established

Supreme Court law when they issued rulings consistent with

Apodaca during Petitioner’s direct appeal in 2014 and 2015.7

Although Petitioner also frames his claim as one of

ineffective assistance of PCR counsel in violation of Martinez,

Martinez is inapplicable where there is no procedural default to

excuse. If Petitioner is attempting to assert that PCR counsel

should have raised an ineffective assistance of trial counsel

claim for failing to challenge the non-unanimous jury verdict,

such a claim is meritless because counsel specifically raised

such an objection. Trial Transcript, pp. 597-98. To the extent he

faults PCR counsel for not attempting to re-litigate the direct

appeal challenge, it would not only have been procedurally

improper to do so under Oregon law, but Martinez does not serve

to excuse a procedural default pertaining to anything except a

claim of ineffective assistance of trial counsel. See Davila v.

Davis, 137 S.Ct. 2058 (2017).

IV. Request for Evidentiary Hearing

In the caption of his pleadings, Petitioner asks this Court

to conduct an evidentiary hearing. Due to the procedural posture

of this case, Petitioner has been able to expand the record with

7 The Court notes that in Edwards v. Vannoy, No. 19-5807, the Supreme Court is

set to determine whether its decision in Ramos applies retroactively to cases

on collateral review, but Petitioner does not ask to stay the action. Even

assuming Ramos applies retroactively, it would not alter this Court’s

conclusion as to whether Oregon’s state courts acted unreasonably given the

state of the law as it existed during Petitioner’s direct appeal. If the

Supreme Court does determine that Ramos applies retroactively, Petitioner

could move for leave to file a successive habeas corpus case. See 28 U.S.C.

§ 2244 (b)(2)(A).

additional evidence in an attempt to demonstrate the viability of

his claims. The record is sufficiently developed to assess the

Petitioner’s claims, and his new evidence does not entitle him to

habeas corpus relief such that further evidentiary development is

not needed. Moreover, he has not identified what evidence of

material import an evidentiary hearing would produce that he has

not already provided through expansion of the record.

Accordingly, to the extent Petitioner’s request for an

evidentiary hearing exceeds the scope of the expansion of the

record that has already taken place, the request is denied. See

Schriro v. Landrigan, 550 U.S. 465, 474-75 (2007); Rhoades v.

Henry, 638 F.3d 1027, 1041 (9th Cir. 2011); Gandarela v. Johnson,

286 F.3d 1080, 1087 (9th Cir. 2002).

CONCLUSION

For the reasons identified above, the Amended Petition for

Writ of Habeas Corpus (#32-1) is denied. The Court does, however,

issue a Certificate of Appealability as to Petitioner’s claims of

ineffective assistance of counsel pertaining to Dr. Reisberg,

Adriana Martinez, Serafin Martinez, and Maria Martinez.

IT IS SO ORDERED.

DATED this day of September, 2020

_______________________________

Marco A. Hernandez

United States District Judge