Ferry v. Berger

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

RICHARD FERRY,

Civil No. 3:18-cv-00154-AC

Petitioner,

OPINION AND ORDER

v.

STEVE BERGER, and

MICHAEL HSU,

Respondents.

ACOSTA, Magistrate Judge.

Petitioner brings this habeas corpus action challenging his 2010 conviction on several

charges of sexual abuse against his two nieces. For the reasons that follow, the Petition for

Writ of Habeas Corpus is DENIED.1

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1 All parties to this action have consented to allow a Magistrate Judge to enter

final orders and judgment in this case in accordance with Fed. R. Civ. P. 73 and 28

U.S.C. 636(c).

1 - OPINION AND ORDER

FACTUAL BACKGROUND

In July 2009, petitioner s niece SV, who was 14 at the time, disclosed to her counselor

that Petitioner had touched her on her breast. SV stated that Petitioner had also touched her

sister CV, who was then 13 years of age. SVs counselor reported SVs disclosure to the

Oregon Department of Human Services ( DHS ) as required by law. DHS, in turn, contacted

the police.

Detective Kari Christensen investigated the allegations and scheduled evaluations of the

victims with CARES Northwest. At CARES, CV disclosed that Petitioner had touched her on

her chest, vagina, and buttocks, both over and under her clothes. SV disclosed that Petitioner

had touched her on her breasts, but stated he had not touched her vagina.

About ten days after the CARES evaluation, SV called Detective Christensen and asked

to speak with her. The detective met SV at her school, and in the presence of a School

Resource Officer and Christensen, SV reiterated that Petitioner had touched her on her chest,

both over and under her shirt. SV also stated that she remembered additional information after

speaking with her counselor and her sister. She stated that Petitioner had also touched her

vagina, under her clothing, and that it occurred at the same time he touched her breasts. SV

told the officers that she believed CV was in the room at the time.

In late October, Detective Christensen spoke with each of the victims again separately

after they appeared and testified before the grand jury. SV provided additional details about the

abuse, stating that Petitioner had touched her on the breasts at least three times, that the touching

started when she was around 12 or 13 years old, and that Petitioner had touched her vagina at

2 - OPINION AND ORDER

least once. She also told the detective that she had seen Petitioner touch CV on the breast at

least once and on the vagina at least once. Separately, CV told the detective that Petitioner had

touched her more than 25 times, both on the breasts and vagina. She also said that she saw

Petitioner touch SV on her breasts on two occasions but that she had never seen Petitioner’s

hands down SV’s pants. CV said she was worried about Petitioner being around other children,

including her young female cousin.

At trial, the state called both victims, who each testified that Petitioner sexually abused

them. The state also called SV’s counselor, who testified about her interactions with SV; Anh

(the victims’ mother); Detective Christensen, the lead investigator; and Dr. Christine Stampfer, a

psychiatric nurse practitioner who treated CV. Finally, the state called Dr. Linda Lorenz, a

CARES pediatrician, who testified about the interview and medical examinations conducted with

the victims, and who presented the video interviews CARES conducted with the victims.

The defense theory at trial was that the victims had fabricated the abuse. The defense

presented evidence that in July 2009, the victims’ mother Anh had been in a fight with

Petitioner’s wife Tien, who is Anh’s sister. Following the fight, Anh prevented the victims from

going on a weekend trip with the extended family, including Petitioner’s family. SV testified

that, during that weekend, she discussed with CV and Anh “how [she] did not like” petitioner.

The defense theory was that the victims had fabricated the abuse that weekend, and suggested

that the victims may have had a financial motive for fabricating the abuse, may have been angry

at Petitioner for punishing them, or may have been attempting to please their mother Anh.

3 - OPINION AND ORDER

The defense also presented evidence that CV had denied the abuse to her family. Three

of the victims aunts testified that the night they returned from the weekend trip the victims

missed, they asked CV whether she had been abused. First, they asked CV while she was in a

car with just her mother and the aunts. Next, they went to Petitioner s house, where they asked

CV again in the presence of more family members, including Petitioner. Both times CV either

denied the abuse or did not respond.

The defense also contended that the police had not done an adequate investigation.

Counsel cross-examined the investigating detective about her decision to not interview various

extended family members and her lack of thoroughness in questioning witnesses. The defense

then called several family members as witnesses. The defense also called a psychologist as an

expert witness, who testified about the importance of asking open-ended questions in child abuse

cases, asking questions to determine whether the victims may have a motive to lie, and obtaining

corroborating evidence. She also described the limitations that CARES had in memorializing

an accurate memory of an abuse allegation and some of her concerns with the investigation in

this case specifically.

Petitioner also testified at trial, and denied any abuse occurred. He acknowledged

hugging his nieces, and stated that any physical contact that occurred was appropriate.

Petitioner maintained that the victims mother pressured the girls to falsely accuse him due to her

contentious relationship with Petitioners wife.

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4 - OPINION AND ORDER

PROCEDURAL BACKGROUND

On October 26, 2009, a Washington County grand jury indicted Petitioner on six counts

of Sex Abuse in the First Degree and six counts of Sex Abuse in the Third Degree. Resp. Exh.

102. The state moved to dismiss five of the counts before trial. A jury found Petitioner guilty of

six of the remaining counts, and acquitted Petitioner on one count of Sexual Abuse in the Third

Degree. Resp. Exh. 101, p. 4. The trial judge sentenced Petitioner to a total of 87 months of

imprisonment, followed by three years of supervised release.

Petitioner appealed, asserting that the trial court erred in admitting expert evidence about

delayed disclosure by sex abuse victims, in admitting the videotaped interviews of the victims, in

allowing the jury to review the videos during deliberations, in admitting a letter written by one of

the victims, in denying a motion to dismiss the indictment on state and federal double jeopardy

grounds, and in entering a verdict based on a non-unanimous verdict in violation of the Sixth

Amendment. Resp. Exh. 103. The Oregon Court of Appeals affirmed in a written opinion

which addressed only the admission of the victim s letter. State v. Ferry, 255 Or. App. 625

(2013). Petitioner sought review from the Oregon Supreme Court, asserting two state law

claims. The Oregon Supreme Court denied review. State v. Ferry, 353 Or. 868 (2013).

Petitioner then sought state post-conviction relief ( PCR ), alleging that trial counsel was

ineffective in 25 different respects (several with multiple sub-claims), that his appellate counsel

was ineffective in five different respects, and that the prosecutor engaged in misconduct in seven

different respects. Resp. Exh. 109. Following an evidentiary hearing, the PCR trial judge

denied relief on each of Petitioners claims on the merits. Resp. Exh. 153.

5 - OPINION AND ORDER

On appeal, Petitioner assigned error to the denial of several of the claims of ineffective

assistance of trial and appellate counsel. Resp. Exh. 154. The Oregon Court of Appeals

affirmed without opinion. Ferry v. Popoff, 287 Or. App. 122 (2017). In his Petition for

Review to the Oregon Supreme Court, Petitioner narrowed his arguments to four claims of

ineffective assistance of trial counsel:

I? The post-conviction court erred in concluding that trial counsel was

not ineffective for failing to adequately and effectively object, move to strike, and

request curative instructions on the many instances [of] various witnesses

vouching for the alleged victims.

(a) The trial court erroneously allowed [SV] to read to the jury a

letter she had written to the prosecutor, which vouched for her credibility.

(b) Trial counsel impermissibly allowed Detective Christensen to

vouch for the credibility of [CV] and [SV].

(c) Trial counsel failed to move to strike and request a curative

instruction after Detective Christensen testified before the jury that she

had “no concerns about [SV’s] credibility as it relates to sex abuse in this

case.”

(d) Trial counsel failed to request that the court provide a limiting

instruction to the jury instructing the jury that evidence of “delayed

disclosures” cannot be considered as affirmative evidence of sexual abuse,

and that the jury could only consider “delayed disclosures” to rebut any

evidence of fabrication by the victims. Without such limiting instruction,

trial counsel allowed the prosecutor to argue that the victims “delays and

their incremental disclosures make sense because they’re telling the truth.”

(e) Trial counsel failed to object and move to strike psychiatric

nurse practitioner Carol Stampfer’s diagnosis of adjustment disorder for

2In his Petition for Review, Petitioner began numbering his claims with a Roman

numeral II. For clarity, the court re-numbered them and refers to the claims beginning with

claim I.

6 - OPINION AND ORDER

[CV] given that that diagnosis encompassed [CV s] report of being

sexually harassed by Petitioner.

II. The post-conviction court erred in concluding that trial counsel was

not ineffective for failing to adequately and effectively creat[e] a record for

appellate review through an offer of proof [of] the reasons and legal argument as

to Petitioner should have been allowed to present evidence that was

commensurate to the theory of his defenses.

(a) Evidence that [CV] was attempting to curry favor with the

prosecution after the court sustained the prosecutors objection to trial

counsels inquire regarding vandalism charges she was facing at the time

of her trial testimony.

(b) Evidence that Quynh Buio Truong, [the victims aunt] knew

that [the victims mother] disliked Petitioner after the court sustained the

prosecutors objection and excluded that evidence.

(c) Evidence the Petitioner was the one that punished [CV] and

[SV] for inappropriate internet activity and smoking.

(d) Evidence that Tien, Petitioners wife never observed Petitioner

show any sexual interest in either [CV] or [SV].

III. The post-conviction court erred in concluding that trial counsel was

not ineffective for failing to adequately and effectively object and argue against

letters written by the alleged victims as being irrelevant, and did not fall within a

hearsay exception. Counsel also failed to request a limiting instruction after the

letters were allowed into evidence.

IV. Trial counsel was required to request a limiting instruction that

directed the jury to consider the several charges against multiple declarants

separately.

Resp. Exh. 156, pp. 14-24. The Oregon Supreme Court denied review. Ferry v.

Popoff, 362 Or. 208 (2017).

Petitioner then sought habeas corpus relief in this court. In his Second Amended

Petition, he alleges he is entitled to relief on the grounds that he is being unlawfully detained in

7 - OPINION AND ORDER

violation of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United

States Constitution, because he was denied due process, equal protection, a fair trial, effective

assistance of counsel and subjected to cruel and unusual punishment when the State illegally

convicted and sentenced him. Second Amended Petition for Writ of Habeas Corpus, ECF No.

8, p. 14. Petitioner then references all of the claims raised on direct appeal to the Oregon Court

of Appeals and in his Petition for Review to the Oregon Supreme Court, in his state PCR trial

proceedings, on appeal to the Oregon Court of Appeals from the denial of PCR, and in his

Petition for Review to the Oregon Supreme Court. Id.

In his Memorandum in Support of Second Amended Petition, Petitioner does not address

any claims of trial court error; instead, he addresses only claims of ineffective assistance of trial

and appellate counsel. In addition to the claims of ineffective assistance of trial counsel claims

set forth above that Petitioner presented to the Oregon Supreme Court in his state PCR

proceeding, Petitioner argues the following claims:3

V. The post-conviction court erred in concluding that trial counsel was

not ineffective for failing to adequately and effectively object and argue that the

prosecutor did not impermissibly comment against petitioner exercising his

constitutional rights.

VI. The post-conviction court erred in concluding that trial counsel was

not ineffective for failing to adequately and effectively cross-examine and

impeach the alleged victims with prior inconsistent statements that each made.

VII. The post-conviction court erred in finding that appellate counsel did

not provide inadequate and effective assistance of counsel and denying

post-conviction relief.

3For ease of reference, the court continues with the numbering of the claims as set forth

above; the actual numbering in Petitioners Memorandum in Support differs slightly.

8 - OPINION AND ORDER

VIII. The post-conviction court erred in concluding that appellate

counsel was not ineffective for failing to brief an issue against the introduction of

the letter written by [SV] as referenced in State v. Ferry, 255 Or App 625 (2013).

IX. The post-conviction court erred in concluding that appellate counsel

was not ineffective for failing to brief an issue addressing the trial court’s refusal

to allow into evidence prior false accusations by [SV] under State v. LeClair, 83

Or App 121 (1986).

X. The post-conviction court erred in concluding that appellate counsel

was not ineffective for failing to brief an issue addressing the trial court’s refusal

to allow into evidence that the victims’ mother suffered from mental illness and

induced the girls into fabricating the progressively worse allegations against

Petitioner.

XI. The post-conviction court erred in concluding that appellate counsel

was not ineffective for failing to brief an issue against the introduction of

character evidence of the alleged victims to rebut the State s assertion that the

reason the alleged victims delayed and incremental disclosures were due to their

being timid.

Respondent Hsu contends that several of the claims Petitioner appears to raise in his

Second Amended Petition are not cognizable, that several claims are procedurally defaulted, and

that the remaining claims were denied in state court decisions which are entitled to deference.

Respondent Berger concurs with Respondent Hsu s arguments, and also contends he is entitled to

dismissal because neither he nor Washington County may grant Petitioner s requested relief.4

Respondent Berger has also filed a Motion to Dismiss the Second Amended Petition, arguing

that the expiration of Petitioners sentence and term of supervised release rendered his claims

moot.

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9 - OPINION AND ORDER

DISCUSSION

1, Defendant Berger’s Motion to Dismiss as Moot

Defendant Berger moves to dismiss the Petition for Writ of Habeas Corpus as moot

because Petitioner’s term of supervised release expired during the pendency of this action. In

Carafas v. La Vallee, 391 U.S. 234 (1968), the Supreme Court held that a petition filed while the

petitioner still was actually incarcerated did not become moot upon the expiration of the sentence

due to the continuing collateral consequences of the conviction by virtue of the petitioner’s

inability to vote, engage in certain businesses, hold public office or serve as a juror. /d. at

237-38. Respondent Berger’s argument that the expiration of Petitioner’s term of supervised

release means he no longer suffers collateral consequences is foreclosed by the Ninth Circuit

Court of Appeals’ decision in Chacon v. Wood, 36 F.3d 1459 (9th Cir. 1994). There, the court

“recognized an irrefutable presumption that collateral consequences result from any criminal

conviction,” explaining that “[o]nce convicted, one remains forever subject to the prospect of

harsher punishment for a subsequent offense as a result of federal and state laws that either

already have been or may eventually be passed.” Jd. at 1463; accord Wood v. Hall, 130 F.3d

373, 376 (9th Cir. 1997).

Here, because there is an irrefutable presumption of “collateral consequences” flowing

from the challenged conviction that will continue to affect Petitioner, this action has not been

‘The court previously denied Respondent Berger’s Motion to Dismiss on this basis by

Order (ECF No. 34) of March 26, 2019. Respondent Berger has not established a basis for

reconsideration of that holding, and the Court does not further consider or address this defense.

10 - OPINION AND ORDER

rendered moot by the expiration of his sentence. Accordingly, the court denies Respondent

Bergers motion to dismiss the petition based on mootness.

II. Claims Not Addressed in Petitioner s Memorandum in Support

As noted, although his Second Amended Petition for Writ of Habeas Corpus references

all of the claims made throughout Petitioners direct appeal and state PCR proceedings, his

Memorandum in Support addresses only claims of ineffective assistance of trial and appellate

counsel. As such, Petitioner has not sustained his burden to demonstrate why he is entitled to

relief on the claims alleged but not addressed. See Lampert v. Blodgett, 393 F.3d 943, 970 n. 16

(9th Cir. 2004). Nevertheless, the court has reviewed the remaining claims and is satisfied that

Petitioner is not entitled to habeas corpus relief.

III. Procedural Default

A habeas petitioner must exhaust his claims by fairly presenting them to a 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

11 - OPINION AND ORDER

state courts and therefore are 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).

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. 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 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 his Petition for Review to the Oregon Supreme Court in his PCR proceeding,

Petitioner raised only the claims of ineffective assistance of trial counsel set forth in Claims I

through IV above. In his Memorandum in Support of his Second Amended Petition, however,

he argues two additional claims of ineffective assistance of trial counsel and five claims of

ineffective assistance of appellate counsel, as set forth in Claims V through XI above. Morever,

Petitioner did not fairly present Claim I(a) to the PCR trial court; even though he raised it in the

PCR appeal, he did not allege in the PCR trial court that counsel should have objected to the

letter as improper vouching. See Johnson v. Myrick, 285 Or. App. 395, 399 (2017) (appellate

courts cannot grant relief on a claim that is not pleaded in the PCR petition and not preserved).

Finally, for the same reason Petitioner did not fairly present the claim alleged in Ground III that

12 - OPINION AND ORDER

trial counsel was ineffective in failing to object to admission of the victims’ letters on relevance

grounds; although he raised it on appeal he did not allege it in his PCR petition.

Accordingly, these claims are procedurally defaulted. Because Petitioner has not

established cause and prejudice or a fundamental miscarriage of Justice to excuse his procedural

default, habeas corpus relief is denied on these claims.

IV. _ Relief on the Merits

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), habeas

corpus relief “shall not be granted with respect to any claim that was adjudicated on the merits

in State court proceedings unless the adjudication of the claim

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal Law, as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding.”

28 ULS.C. § 2254(d).

A state court decision is “contrary to” established federal law if it fails to apply the

correct Supreme Court authority, or if it reaches a different result in a case with facts “materially

indistinguishable” from relevant Supreme Court precedent. Brown v. Payton, 544 U.S. 133,

141 (2005); Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision is an

“unreasonable application” of clearly established federal law if the state court identifies the

correct legal principle but applies it in an “objectively unreasonable” manner. Woodford v.

Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam); Williams, 529 U.S. at 407-08, 413; see also

Early v. Packer, 537 U.S. 3, 11 (2002) (per curiam) (state court decisions that are not “contrary

13 - OPINION AND ORDER

to” Supreme Court law may be set aside only “if they are not merely erroneous, but ‘an

unreasonable application’ of clearly established federal law, or are based on ‘an unreasonable

determination of the facts’”).

It is clearly established federal law that a claim of ineffective assistance of counsel

requires a habeas Petitioner to prove that counsel’s performance fell below an objective standard

of reasonableness, and that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. Strickland v. Washington, 466

U.S. 668, 687-88 (1987). Failure to satisfy either prong of this test obviates the need to

consider the other. /d. at 687.

This court’s inquiry under Strickland is highly deferential. 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.” Knowles v. Mirzayance, 556 U.S.

111, 122 (2009).

A. Trial Counsel’s Failure to Adequately and Effectively Object, Move to Strike,

and Request Curative Instructions as to Many Instances of Witnesses

Vouching for the Alleged Victims

Petitioner exhausted his state court remedies on his claims that trial counsel should have

objected to, moved to strike, and requested curative instructions on the basis of improper

vouching in three respects: (1) his claim that trial counsel impermissibly allowed Detective

Christensen to vouch for the credibility of the victims and failed to move to strike and request a

curative instruction after Detective Christensen testified that she did not have concerns about

SV’s credibility; (2) his claim that trial counsel failed to request the court to provide a limiting

14 - OPINION AND ORDER

instruction to the jury on the issue of “delayed disclosures” of sexual abuse; and (3) his claim that

trial counsel failed to object to and move to strike testimony from a psychiatric nurse practitioner

that a diagnosis of adjustment disorder of CV encompassed CV’s report of being sexually

harassed by Petitioner.

1. Detective Christensen’s Testimony

As noted above, a substantial part of the defense theory was that the lead investigator,

Detective Christensen, did not adequately investigate the case. Petitioner’s trial counsel

questioned the Detective about her investigation, and specifically whether she questioned the

victims’ mother, Anh, about the inter-family conflict or other potential motives for the victims to

lie. Counsel then asked Detective Christensen if the CARES social worker’s interview with the

victims’ mother raised concerns about SV’s credibility:

COUNSEL: And during that - that interview did you become aware of

concerns about [SV]’s credibility?

WITNESS: I don’t recall.

COUNSEL: If during that - that kind of interview scenario at CARES,

you got information that concerned you about whether somebody was credible -

WITNESS: Uh-huh.

COUNSEL: - whether they tended to be reliable in the things that they

reported, would you have followed up about that?

WITNESS: | If I didn’t think they were telling the truth, yes, I was.

COUNSEL: Or if there was information that someone didn’t think they

were telling the truth -

WITNESS: Sure.

15 - OPINION AND ORDER

COUNSEL: - would you have followed up on that?

WITNESS: Sure.

Petitioner contends that by eliciting this testimony, trial counsel impermissibly allowed the

Detective to vouch for SV’s credibility.

After the cross-examination, on re-direct the prosecutor followed up by asking if

Detective Christensen ever had concerns about SV’s credibility:

STATE: Now, you were asked questions by the defense attorney at

CARES whether any issue ever came up about [SV]’s credibility. Do you

remember being asked those questions?

WITNESS: I do.

STATE: Do you or have you ever had concerns about [SV]’s credibility

as it relates to sex abuse in this case?

At this point, trial counsel objected to the question as an improper comment on credibility, which

the trial court sustained. Petitioner contends trial counsel should have moved to strike this

testimony or request a curative instruction.

The PCR trial court rejected Petitioner’s claim as to Detective Christensen’s testimony:

6. Trial attorney, on cross, asked Det [Christensen] if she became aware at

Cares about concerns that [SV] not credible. The det testified that she

didn’t remember. The defense had already made it clear that they were

going to argue strongly that the police jumped to a conclusion and failed

to investigate other issues. This opened the door to the DA asking the

det if she would have followed up if she had that information from Cares.

The question was proper.

Resp. Exh. 153, p. 2. As to the failure to request a curative instruction, the PCR trial court

found “no inadequacy in failing to request” it, as “[t]hey are comments on the evidence and not

necessary to a fair and impartial verdict.” Resp. Exh. 153, p. 3. The PRC trial concluded,

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“[t]here was no inadequacy on the part of either trial attorney and no prejudice caused by the

representation.”

The PCR court’s conclusion was not contrary to or an unreasonable application of

Strickland. Detective Christensen did not directly testify that she believed the victims, nor is

her testimony tantamount to saying so. See Easter v. Mills, 239 Or. App. 209, 215 (2010)

(holding that a mother’s testimony that she did not know of any motive that her daughter had to

lie was not an impermissible comment on credibility). In any event, trial counsel made a

reasonable, strategic decision to elicit the testimony to bolster the defense theory that the state

failed to conduct an adequate investigation. Moreover, on cross-examination after trial counsel

explained the basis for objecting, “[t]hat’s clearly an improper question . . . calls for a witness to

comment on the credibility of another witness,” the trial judge sustained the objection. Under

these circumstances, reasonable counsel could make a strategic decision to decline to move to

strike and request a curative instruction to avoid drawing further attention to the testimony.

Finally, Petitioner has not demonstrated prejudice. The challenged testimony did not directly

vouch for the witnesses’ credibility and, given the evidence of guilt, Petitioner has not

established that Detective Christensen’s statement had a tendency to affect the jury’s verdict.

2. Evidence of Delayed Disclosures

The state elicited testimony from several witnesses that it is common for child sex abuse

victims to wait for some time after the abuse before disclosing it. Petitioner contends that trial

counsel was ineffective for failing to request that the court instruct the jury that the victims’

delay in reporting “cannot be considered as affirmative evidence of sexual abuse.” Petitioner

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has not, however, identified any testimony in which a witness stated that the victims’ delayed

disclosures affirmatively demonstrated that they had been abused. In fact, a defense expert

testified that, although delayed disclosure is common, the delay “does not seem to be at all

related to whether the statement is true or false.” Given this testimony, counsel would not

have had any reason to request a curative jury instruction. Likewise, although Petitioner

contends that the prosecutor improperly used the experts’ testimony in closing to argue that the

victims’ delay tended to demonstrate that they were telling the truth, the record belies this

argument. The prosecutor simply did not do so.

Petitioner has not established that the PCR trial judge improperly applied Strickland to

conclude that Petitioner had not established ineffective assistance of counsel as to this claim.

Accordingly, that decision is entitled to deference.

3. Diagnosis of Adjustment Disorder

Petitioner next argues that trial counsel should have objected to psychiatrist nurse

practitioner Dr. Carol Stampfer’s testimony that she diagnosed CV with an adjustment disorder.

Dr. Stampfer testified about treatment of CV which occurred before the victims disclosed their

abuse. Dr. Stampfer saw CV only once or twice, and diagnosed her with adjustment disorder

with depression. CV told Dr. Stampfer that an uncle had “sexually harassed” her and also told

her about other issues, including conflicts with her mother due to cultural differences and

conflicts with her extended family. On cross-examination, Dr. Stampfer testified that part of

what helped her reach the diagnosis of adjustment disorder was the report of being sexually

18 - OPINION AND ORDER

harassed by an uncle, but on re-direct agreed that CV spent more time talking about social issues

with her mother than the sexual harassment.

Petitioner contends that Dr. Stampfers diagnosis was necessarily based on her

assessment of CV s believability, such that it rose to the level of improper vouching of CV s

character. Nothing in the record, however, suggests that the diagnosis was based solely on

CV's credibility; indeed Dr. Stampfer testified that the diagnosis was also based, at least in part,

on verifiable symptoms such as self-harm behavior. Thus, Petitioner has not established that

the testimony was inadmissible, and the PCR court's conclusion that Petitioner failed to

demonstrate deficient performance or prejudice is entitled to deference.

B. Failure to Make Offers of Proof

Petitioner next contends that trial counsel was ineffective in failing to make offers of

proof after the trial court sustained the prosecution s objections to certain evidence: (1)

evidence of vandalism charges against CV; (2) evidence that the victims other aunts knew the

victims mother disliked Petitioner; (3) evidence that the victims aunt would have testified that

Petitioner disciplined the victims; and (4) evidence that Petitioner never indicated a sexual

interest in the victims. As to the first three, the PCR trial court rejected the claims as follows:

8. The trial attorney did not make any offers of proof concerning items listed

in claim 13. There is insufficient evidence in this proceeding to know if

there was evidence to present on the vandalism charge. It was not

relevant if Anhs sister didnt like Pet unless that could somehow be

connected to the girls making the charges. There was testimony that pet

disciplined the girls for several things.

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Resp. Exh. 153, p. 3. The PCR trial court’s conclusion that Petitioner failed to establish

prejudice under these circumstances is not contrary to or an unreasonable application of

Strickland.

As to the fourth claim, the court notes that while examining Petitioner’s wife defense

counsel asked if Petitioner had ever done or said anything in her presence “that indicated to [her]

that he had a sexual interest in” the victims. The witness responded, “No,” before the trial court

sustained the prosecutor’s objection to the question. As a result, the trial record adequately

demonstrated the evidence trial counsel hoped to elicit, a sufficient offer of proof for appellate

review. See State v. Smith, 194 Or. App. 697, 703 (2004) (where trial court sustained

prosecutor’s objection after witness answered question which provoked the objection, the

defendant was not required to do any more to preserve his claim of error when the court

foreclosed the line of inquiry). Under these circumstances, Petitioner has not established

counsel was insufficient.

C. Failure to Request Limiting Instruction Regarding SV’s Letter

The prosecution offered letters each victim had written explaining their motivations to

come forward to rebut the defense theory that the victims fabricated the abuse allegations. SV’s

letter stated that she did not “ask for much” but “just” wanted an apology and for her entire

family to believe her. She stated:

This 1s -- this has been a difficult challenge for me — for me to overcome. I have

learned important lessons from this. I learned from one of my school officer,

detective officer, the Hillsboro Police Department, they both said it’s not my fault

and stand up for yourself and you’re a brave little girl. Another thing that my

school officer said, keep your head up and don’t let people put it down. I’m

grateful that I have important people believing my story.

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Defense counsel object to the admission of the letter because of this paragraph, arguing that (1)

the school officer’s and detective’s statements were vouching and did not rebut the defense’s

evidence of bias; (2) the letter was hearsay and the officials’ statements were double hearsay; and

(3) the officials were not identified and could not be cross-examined, violating Petitioner’s right

to confront them.

The prosecutor responded that the letter itself fell within the hearsay exception under

state law for child-hearsay statements and that the officials’ statements were not hearsay because

they were offered for their effect on SV to show her motivations in coming forward. The

prosecutor also argued that the statements were not improper vouching because he was offering

them to show why SV came forward, rather than to show that the police believed her. Defense

counsel reiterated her arguments and contended that, despite the prosecutor’s claim that the

statements were being offered only to show their effect on SV, there was no way the jury could

avoid taking the letter as some form of substantive evidence.

The trial court admitted the letter. The judge reasoned that the officials’ statements were

being offered for their effect on SV, and that the jury would be able to understand that and not

consider those statements as substantive evidence, if given the right limiting instruction. Trial

counsel did not, however, request a limiting instruction. The PCR trial court addressed

Petitioner’s claim that trial counsel was ineffective as follows:°

Although Petitioner’s claim before this court pertains only to the admission of SV’s letter

(as did his claim to the Oregon Supreme Court), at the PCR trial court level Petitioner alleged

ineffective assistance as to both victims’ letters, and the PCR trial court accordingly addressed

them in tandem.

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4. . . . This court would not have allowed the letters from either of the girls.

The trial court accepted the DAs arguments and allowed them.

Petitioner pleads that the trial attorney failed to make the proper argument,

but the letters are both helpful to the defense in that they present a very

sympathetic view of petitioner and show that the girls themselves want

him with his family rather than in prison. Trial attorney objected to the

DAs redaction of one of the letters and chose to have it come in

unredacted. That indicates to this court a strategic decision about what

was or was not prejudicial. It would have been reasonable strategy for

the defense to allow them in. The two letters are legally similar, so are

either both in or out. The only statement in the letters that could be

damaging is about people in authority believing [SV]. That could be

seen as vouching, but strategically might be worth the risk. A limiting

instruction would have been counter productive.

Resp. Exh. 153, p. 4 (emphasis added).

In light of defense counsels argument that there was no way the jury could avoid taking

the officials statements as some form of substantive evidence, counsel could reasonably

conclude that a limiting instruction would do no good and would in fact draw more attention to

the evidence. As a result, Petitioner has not established that it was unreasonable for the PCR

court to conclude that counsel did not perform deficiently. At a minimum, it is not so

unreasonable that no fairminded jurist could agree with it.

D. Failure to Request Limiting Instruction Directing the Jury to Consider

Evidence as to Each Victim Separately

Finally, Petitioner argues trial counsel was ineffective for failing to request a limiting

instruction directing the jury to consider the several charges against multiple defendants

separately. He contends that the lack of a such a jury instruction permitted the jury to consider

evidence concerning the abuse of each victim for propensity purposes.

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As noted above, the defense theory at trial was that the victims were fabricating the abuse

allegations in a complicated family context. Indeed, counsel treated all the charges against

Petitioner as one false allegation; counsel argued that the victims colluded to say that they each

saw the other being abused, and their mother was the driving force behind their allegations. A

jury instruction requiring the jury to consider the charges independently would have been

inconsistent with the theory that the jury should consider the charges together as one fabricated

allegation. Accordingly, trial counsel was not insufficient in failing to request the instruction.

In any event, Petitioner has demonstrated prejudice because he has failed to establish the trial

court would have given the instruction if requested, or that the outcome of the trial would have

been different. Accordingly, Petitioner has not established the PCR trial court s decision

denying relief on this claim was objectively unreasonable.

CONCLUSION

For these reasons, the Court DENIES Respondent Berger s Motion to Dismiss (ECF No.

63), and DENIES the Second Amended Petition for Writ of Habeas Corpus (ECF No. 8).

The Court DENIES a certificate of appealability as Petitioner has not made a substantial

showing of the denial of a constitutional right. See 28 U.S.C. 2253(c)(2).

IT IS SO ORDERED.

DATED this 23rd day of August, 2021.

/s/ John V. Acosta

John V. Acosta

United States Magistrate Judge

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