# Tapia-Martinez v. Taylor

> District Court, D. Oregon · September 9, 2020

URL: https://www.frixlaw.com/law-library/cases/10392455

## Case

- **Court:** District Court, D. Oregon
- **Decided:** September 9, 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/10392455

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10392455. Public record. Not legal advice.