Garcia v. Amsberry

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JUAN CARLOS GARCIA,

Case No. 2:19-cv-01859-HZ

Petitioner,

OPINION AND ORDER

v.

BRIGITTE AMSBERRY,

Respondent.

Juan Carlos Garcia

11265432

Eastern Oregon Correctional Institution

2500 Westgate

Pendleton, OR 97801-9699

Petitioner, Pro Se

Ellen F. Rosenblum, Attorney General

Nick M. Kallstrom, 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 various state-court

convictions stemming from his sexual abuse of a minor. For the

reasons that follow, the Petition for Writ of Habeas Corpus (#2)

is denied.

BACKGROUND

The victim in this case, LA, was the younger sister of

Petitioner’s wife, Anna Alvarez. In 2012, LA disclosed that

Petitioner repeatedly raped her from the time she was six years

of age until she was 15 years old. Based upon these allegations,

the State indicted Petitioner on 11 counts and the case proceeded

to trial.

During the defense’s cross examination of Alvarez, counsel

attempted to elicit the sexual position Petitioner utilized with

Alvarez so as to establish that his consensual sexual relations

with his wife were dissimilar to the sexual abuse LA described.

The prosecutor objected on the basis that OEC 412 forbade such

questions.1

Def. Counsel: All right, one of the questions

Detective Green had asked you was, "When you

and Mr. Garcia were having sex, what type of

a position you would be in?”

Prosecutor: And Your Honor, I'm going to

object under 412 as requesting information

about a witness[’] prior sexual activity.

1 As relevant here, OEC 412 prohibits the use of “Reputation or opinion

evidence of the past sexual behavior of an alleged victim or a corroborating

witness[.]” OEC 412(a)(1).

Def. Counsel: Your Honor, first off, 412 in

this situation would not apply. I'm asking

about habit evidence of the Defendant which

is clearly admissible under 404 and 608, Your

Honor. I'm only going to ask the same

question that Detective Green asked this

witness. I'm not doing it for the purpose of

embarrassing her, I'm doing it to show what

the Defendant's regular habit was when he was

engaging in relations with her, not her

relations with any other people if she had

any.

THE COURT: The objection is sustained.

(continuing cross)

Def. Counsel: With regard to Mr. Garcia,

what and not with regard to yourself, but

with regard to Mr. Garcia, what seemed to be

his preferred sexual position?

MS. BLACKMAN: Same objection, Your Honor.

412 doesn't just apply to victims. It applies

to witnesses as well.

THE COURT: Sustained.

Trial Transcript, pp. 185-86.

After Petitioner’s wife finished her testimony, defense

counsel requested reconsideration of the judge’s earlier

evidentiary ruling. Specifically, she argued that OEC 406

pertaining to habit evidence permitted her questions, and that

OEC 412 was inapplicable. The trial judge adhered to her earlier

ruling, concluding that the evidence the defense sought to elicit

did not amount to distinctive habit evidence as required by OEC

406. Id at 195.

The jury convicted Petitioner of three counts of Rape in the

First Degree, two counts of Rape in the Second Degree, two counts

of Rape in the Third Degree, and one count of Attempted Sodomy in

the First Degree. As a result, the trial court sentenced him to

450 months in prison. Respondent’s Exhibit 101.

Petitioner took a direct appeal where he argued that the

trial court erred when it excluded the sexual position evidence.

He claimed that OEC 412 was inapplicable, that the exclusion of

the evidence violated various rights under the Sixth and

Fourteenth Amendments, and that the trial court erred with

respect to its imposition of fees. Respondent’s Exhibit 104. The

State conceded on appeal that OEC 412 did not prohibit the

admission of the sexual position evidence, but argued that:

(1) the trial court properly excluded the evidence because it was

not admissible as habit evidence pursuant to OEC 406; and

(2) Petitioner had not preserved his constitutional objections.

Respondent’s Exhibit 105. The Oregon Court of Appeals affirmed

the trial court’s decision without opinion, and the Oregon

Supreme Court denied review. State v. Garcia, 263 Or. App. 715,

330 P.3d 74 (2014); rev. denied, 356 Or. 400, 339 P.3d 440

(2014).

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

Umatilla County where, relevant to this case, he argued that

trial counsel was ineffective insofar as she failed to file an

OEC 412 motion prior to trial to provide adequate notice to the

State of her intent to question Alvarez regarding the sexual

position evidence. He reasoned that counsel’s failure to file a

pretrial OEC 412 motion to establish the admissibility of the

evidence prevented him from preserving his constitutional

objections to the trial court’s exclusion of it. Respondent’s

Exhibit 114. The PCR court denied relief in a written decision.

Respondent’s Exhibit 123. The Oregon Court of Appeals affirmed

the PCR court’s decision without opinion, and the Oregon Supreme

Court denied review. Garcia v. Amsberry, 298 Or. App. 375; 449

P.3d 535 (2019), rev. denied, 365 Or. 557; 451 P.3d 1009 (2019).

Petitioner filed this habeas corpus case on November 18,

2019. In his Petition, he raises three grounds for relief:

(1) Whether the sexual position evidence was

admissible as habit evidence pursuant to OEC

406;

(2) Whether the State proffered sufficient

evidence of Petitioner’s ability to pay the

costs the trial court ultimately imposed; and

(3) Whether trial counsel was ineffective

for failing to preserve a constitutional

challenge to the exclusion of the sexual

position evidence.

Respondent asks the Court to deny relief on the Petition

because the cost issue in Ground Two is not properly raised in a

habeas corpus case, and the state courts reasonably denied relief

on Grounds One and Three. Although Petitioner’s supporting

memorandum was due on September 4, 2020, Petitioner has not

availed himself of the opportunity to file such a brief.

DISCUSSION

I. 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

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).

///

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II. Ground One: Exclusion of Position Evidence

Petitioner first claims that the trial court erred when it

excluded his sexual position evidence. He contends that such

evidence was admissible because it constituted permissible habit

evidence pursuant to OEC 406. The trial judge specifically

determined that the proffered evidence was not covered by OEC

406:

Reviewing Rule 406 in particular there are

three criteria for determining whether the

conduct qualifies [as] habit under Rule 406

subsection b,

1. It must be the regular practice of a

person in responding to a particular kind of

situation.

2. It must be specific, and

3. It must be distinctive.

From the Court's perspective in reviewing the

case law specifically State vs Maxwell 172 Or

App 142, and looking a[t] collaborating

federal cases, and counterparts that address

evidence of habit, the Court is denying the

request of Defendant to reopen that issue

with respect to habit.

The Court's finding that the question itself

is not distinctive in so much of the

Defendant's conduct with respect to engaging

in sexual activity.

And with respect to the case law the Court[]s

are generally more receptive for routine

practices of organization than the evidence

of habits of an individual. There is a guise

of habit evidence, and within this respect

with the question related to how the

Defendant engaged in sexual positions with

his significant other Ms. Anna Alvarez.

So the objection is still sustained at this

point Ms. Kimble.

Trial Transcript, pp. 195-96. As noted in the Background of this

Opinion, the Oregon Court of Appeals affirmed that decision.

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); see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)

("we reemphasize that it is not the province of a federal habeas

court to reexamine state-court determinations on state-law

questions."). Where the Oregon state courts specifically

concluded that Petitioner’s desired evidence was not distinctive

habit evidence covered by OEC 406, and where this Court cannot

reexamine that issue, Petitioner fails to establish that the

state-court decision to deny relief on his Ground One claim was

either contrary to, or an unreasonable application of, clearly

established federal law.

III. Ground Two: Award of Costs

Petitioner next asserts that the trial court erred when it

imposed costs without first establishing his ability to pay them.

The federal courts "shall entertain an application for a writ of

habeas corpus on behalf of a person in custody pursuant to the

judgment of a State court only on the ground that he is in

custody in violation of the Constitution or laws or treaties of

the United States." 28 U.S.C. § 2254(a). This jurisdictional

requirement “explicitly requires a nexus between the petitioner’s

claim and the unlawful nature of the custody.” Bailey v. Hill,

599 F.3d 976, 980 (9th Cir. 2010). Because a decision in

Petitioner’s favor as to his Ground Two claim would have no

impact upon the duration or legality of his confinement, Ground

Two fails to state a cognizable habeas corpus claim.

IV. Ground Three: Ineffective Assistance of Counsel

As his final claim, Petitioner alleges that his trial

attorney was ineffective when she failed to preserve the

constitutional challenges he raised to the sexual position

evidence during his direct appeal. In assessing this claim, the

Court uses the general two-part test established by the Supreme

Court. Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009). First,

Petitioner must show that his counsel's performance fell below an

objective standard of reasonableness. Strickland v. Washington,

466 U.S. 668, 686-87 (1984). Due to the difficulties in

evaluating counsel's performance, courts must indulge a strong

presumption that the conduct falls within the "wide range of

reasonable professional assistance." Id at 689.

Second, Petitioner must show that his counsel's performance

prejudiced the defense. The appropriate test for prejudice is

whether Petitioner can show "that there is a reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different." Id at 694.

A reasonable probability is one which is sufficient to undermine

confidence in the outcome of the trial. Id at 696. When

Strickland's general standard is combined with the standard of

review governing 28 U.S.C. § 2254 habeas corpus cases, the result

is a "doubly deferential judicial review." Mirzayance, 556 U.S.

at 122.

Throughout Petitioner’s PCR proceedings, he argued that

trial counsel was ineffective for failing to file a pretrial

motion pursuant to OEC 412 to ensure that the defense could admit

the sexual habit evidence. He asserted that this failure

prevented counsel from adequately preserving claims that the

exclusion of the evidence violated his Sixth and Fourteenth

rights to a fair trial, confrontation, compulsory process, and to

present a complete defense. Respondent’s Exhibit 115, pp. 9-12;

Respondent’s Exhibit 124, pp. 16-22; Respondent’s Exhibit 127,

pp. 12-14.

In response to Petitioner’s claims, the State introduced an

affidavit from trial counsel who explained her rationale as

follows:

I recall Petitioner wanted me to ask his ex-

wife at trial about their sexual relations,

to show they had a normal sex life and that

the sexual positions described by the victim

in the case were not the types of sexual

activities Petitioner would have engaged in.

It seemed to me that if I let the prosecutor

know beforehand that I would be trying to get

this information in, she would prepare this

witness to respond in a way that would cause

harm to my client. I believed that if the

prosecutor knew in advance that I was going

to ask my client's ex wife about their sex

life, the prosecutor would prepare[] the

witness to make my client sound even worse. I

made a strategic decision to sit quietly on

this line of questioning until it was time to

cross-examine this witness. The prosecutor

was wrong when she argued Rule 412 protected

this witness from having to answer the

question. Rule 412 only shields victims in

these types of cases, not a witness who is

simply being asked questions about consensual

sexual relations with her own ex-husband. The

judge was wrong to sustain the objection on

the basis of Rule 412, and I adequately

argued that this issue was more correctly

covered by Rules 404 and 608. Had I filed a

Motion in Limine to obtain an advance ruling

on this issue, the prosecutor would have

likely assisted the witnesses in preparing

testimony that would have countered my

client's contention that he did not utilize

the sexual positions described by the victim.

Respondent’s Exhibit 120, p. 3.

The PCR court denied relief on this claim, reasoning as

follows:

Petitioner has failed to prove that his trial

attorney was ineffective for failing to file

a Rule 412 motion prior to trial to allow the

testimony regarding Petitioner's sexual

habits with his wife. Trial counsel made a

reasonable strategic decision to not file a

412 motion so that the prosecutor would be

unaware of the issue and could not prepare

his witness to deal with it. The strategy,

tactics, and manner of advocacy of the

defense are for counsel to determine based

upon the exercise of professional skill and

judgment. Secondly, as the state conceded in

its Reply Brief on appeal, Rule 412 did not

apply because the witness was not an alleged

victim of abuse. The Prosecutor and judge

were wrong on this issue. The Court of

Appeals apparently denied the appeal because

the question was seeking improper habit

evidence or because Petitioner was not

prejudiced by the ruling.

Petitioner has failed to prove prejudice in

this proceeding. Had a 412 motion been filed,

it would undoubtedly would have been denied,

because the evidence sought was not covered

by Rule 412. In addition, filing the motion

would have alerted the prosecutor to the

issue and allowed an opportunity to prepare

to respond to the issue and perhaps turn it

to the state's advantage. Petitioner has also

failed to prove that the evidence of his

sexual practices with his wife, if admitted

during the trial, would have had a tendency

to affect the outcome of the trial.

Respondent’s Exhibit 123, p. 3.

As noted above, Petitioner argued on direct appeal that OEC

412 did not apply to the evidence at issue, and the State

conceded this point. Furthermore, and consistent with the

parties’ positions on direct appeal, the PCR court determined

that the prosecutor and trial judge were wrong on this issue and

that OEC 412 was inapplicable. Taking this state-court

interpretation of state law as true, counsel acted reasonably

when she declined to file a pretrial OEC 412 motion to determine

the admissibility of the sexual position evidence.

The OEC 412 issue aside, trial counsel provided a strategic

rationale for not attempting to establish the admissibility of

the sexual position evidence by virtue of a motion in limine. She

was concerned that if she alerted the State to this defense

tactic prior to trial, it would give the prosecutor an

opportunity to fully prepare Alvarez for this line of

questioning. Her desire to retain the advantage of surprise was

reasonable. Where OEC 412 did not apply to the evidence at issue,

and where counsel made a reasonable strategic decision not to

raise the issue pretrial, her performance did not fall below an

objective standard of reasonableness.

Even assuming it did, Petitioner cannot establish that the

outcome of his trial would have been different had counsel

persuaded the trial judge to admit his desired evidence. To the

contrary, a jury would have found it conceivable that Petitioner

engaged in different sexual positions with the victim than those

he and his wife participated in during their consensual

encounters. Thus, Petitioner not only fails to show that

counsel’s performance fell below an objective standard of

reasonableness, he fails to establish prejudice as well. For all

of these reasons, the PCR court’s decision to deny relief on

Petitioner’s Ground Three claim was neither contrary to, nor an

unreasonable application of, clearly established federal law.

CONCLUSION

For the reasons identified above, the Petition for Writ of

Habeas Corpus (#2) is denied. The Court declines to issue a

Certificate of Appealability on the basis that petitioner has not

made a substantial showing of the denial of a constitutional

right pursuant to 28 U.S.C. § 2253(c)(2).

IT IS SO ORDERED.

DATED this 9 day of November, 2020.

_______________________________

Marco A. Hernandez

United States District Judge