Morales-Vargas v. Reyes

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PEDRO MORALES-VARGAS, Case No. 2:22-cv-01748-MC

Petitioner, OPINION AND ORDER

v.

ERIN REYES, Superintendent, Two

Rivers Correctional Institution,

Respondent.

______________________________

MCSHANE, Chief Judge.

Petitioner files this federal habeas action under 28 U.S.C. § 2254 and challenges his

Oregon convictions for rape and sexual abuse on grounds that he received ineffective assistance

of counsel during trial. Respondent argues that Petitioner’s claims are barred from federal review

or were denied in a state court decision entitled to deference. I agree that Petitioner fails to show

entitlement to habeas relief, and the Petition is DENIED.

BACKGROUND

Petitioner was charged with Rape in the First Degree, two counts of Sexual Abuse in the

First Degree, and one count of Unlawful Sexual Penetration in the First Degree. Resp’t Ex. 102.

The charges arose from Petitioner’s alleged abuse of SM, his seven-year-old daughter.

Petitioner waived his right to jury trial and proceeded to trial before the court. Resp’t Ex.

126. Witnesses at trial included SM, her older brother, PM, law enforcement officers, DNA

analysts, and a physician who examined SM at CARES Northwest, a child abuse assessment

center. See generally Resp’t Ex. 103 (transcript of proceedings).

According to the evidence presented at trial, Petitioner and his wife lived in a two-story

residence with their children, SM and PM. One evening, PM walked downstairs and saw

Petitioner and SM in the living room, both partially unclothed with their pants pulled down.

Resp’t Ex. 103 at 107, 205. SM ran into a closet and Petitioner told PM to go back upstairs.

Later, PM asked SM if Petitioner had done “something” to her and, after initially responding

“no,” SM eventually told PM that Petitioner had been “touching” her. Resp’t Ex. 103 at 206. PM

testified that he could not remember what else SM had told him that night. Id.

The next morning, PM told his mother that he had seen Petitioner and SM with their

pants down and that Petitioner “had done something bad to his little sister.” Resp’t Ex. 103 at

222. After being questioned by her mother, SM said that Petitioner “had done something wrong

to her colita,” referring to her vaginal area. Id.; see also Resp’t Ex. 103 at 121, 178, 182. SM’s

mother confronted Petitioner and called the police after Petitioner left their home. Resp’t Ex. 103

at 202-204, 218. Detectives King and Smith arrived and interviewed PM, who used the word

“violar” to explain that SM had been “touched in a bad way”; violar is a Spanish word that

means “rape” in English. Resp’t Ex. 103 at 113, 131, 152, 155.

The detectives asked SM’s mother to call Petitioner, and Petitioner told her to call the

police and take SM to the doctor. Resp’t Ex. 103 at 121, 140. SM’s mother also gave police

officers the underwear Petitioner had worn the night before and SM’s clothing. Resp’t Ex. 103 at

104, 305. Officers transported SM to CARES for an interview and evaluation, and SM disclosed

that Petitioner had “poked” her vaginal area with his hand and with his penis. Resp’t Ex. 103 at

271, 274-75. A physician at CARES collected forensic evidence by taking swabs from SM’s

genital areas and obtaining her underwear. Resp’t Ex. 103 at 117, 173.

Approximately six months later, Petitioner contacted SM’s mother and said he wanted to

meet her. Police officers arrested Petitioner at that meeting and later obtained a DNA sample from

him. Resp’t Ex. 103 at 142-44. Upon testing, analysts found DNA evidence of Petitioner’s sperm

on SM’s outer genitalia, perineal area, and the “interior crotch panel” of her underwear and

detected SM’s DNA and Petitioner’s sperm on Petitioner’s underwear. Resp’t Ex. 103 at 303-05,

316, 318, 334-42.

The trial court found Petitioner guilty of Rape in the First Degree and the two counts of

Sexual Abuse in the First Degree. Resp’t Ex. 103 at 423. The Court found the following

evidence “significant” in finding Petitioner guilty: PM’s observation of Petitioner and SM “with

their pants down”; Petitioner’s instruction to take SM to the doctor; Petitioner’s flight after the

incident; SM’s statements during her CARES interview; the presence of Petitioner’s sperm on

SM’s genital areas and underwear and the presence of SM’s DNA on Petitioner’s underwear.

Resp’t Ex. 103 at 420-22.

At sentencing, the trial court imposed the mandatory sentence of 300 months’

imprisonment on the rape count and concurrent 75-month sentences on the sexual abuse counts.

Resp’t Ex. 101; Resp’t Ex. 103 at 437.

After an unsuccessful direct appeal, Petitioner sought post-conviction relief (PCR) in

state court, arguing that counsel provided ineffective assistance in numerous respects and that

cumulative error rendered his trial unfair. Resp’t Exs. 109-10. The PCR court denied relief, the

Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied

review. Resp’t Exs. 133, 138-39.

Petitioner now seeks federal habeas relief.

DISCUSSION

Petitioner raises five grounds for relief in his Amended Petition. In Grounds I(A) through

I(D), Petitioner claims that his trial counsel provided ineffective assistance in violation of the

Sixth Amendment by: 1) failing to cross-examine SM; 2) failing to object to the hearsay

testimony of Detective King; 3) advising Petitioner to waive a jury and his right to testify; and 4)

failing to investigate and obtain impeachment evidence. In Ground II, Petitioner claims that his

300-month sentence is disproportionate to his offenses and violates the Eighth Amendment

prohibition against cruel and unusual punishment.

In his supporting Brief, however, Petitioner presents no argument to support Grounds

I(C) and (D) or Ground II. See Pet’r Brief in Support (ECF No. 42); Pet’r Sur-Reply (ECF No.

51).1 The Court has reviewed the state court record and finds that Petitioner fails to show habeas

relief is warranted on Grounds I(C) and (D) or Ground II, and the Petition is denied on those

grounds. See Mayes v. Premo, 766 F.3d 949, 957 (9th Cir. 2014) (stating that a habeas petitioner

bears the burden of proving the asserted grounds for relief); Davis v. Woodford, 384 F.3d 628,

637-38 (9th Cir. 2004) (accord).

1 Petitioner also does not dispute Respondent’s argument that Grounds I(C) and (D) are

procedurally defaulted and barred from federal review.

With respect to Grounds I(A) and (B), Respondent argues that the PCR court reasonably

rejected these claims and that its decision is entitled to deference.2

Pursuant to 28 U.S.C. § 2254(d), this Court may not grant a petition for a writ of habeas

corpus filed by a state prisoner with respect to any claim that was adjudicated on the merits in

state court, unless the adjudication resulted in a decision that was “contrary to, or involved an

unreasonable application of, clearly established Federal law” or “resulted in a decision that was

based on an unreasonable determination of the facts in light of the evidence presented.” 28

U.S.C. § 2254(d)(1) and (2).

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

the correct Supreme Court authority or 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). “[A] state prisoner must show that the state

court’s ruling on the claim being presented in federal court was so lacking in justification that

there was an error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). Thus, “even if the

federal habeas court concludes that the state court decision applied clearly established federal

law incorrectly, relief is appropriate only if that application is also objectively unreasonable.”

Penry v. Johnson, 532 U.S. 782, 793 (2001).

2 Respondent initially argued that Ground I(B) was untimely; however, this Court

deemed the Amended Petition filed as of November 28, 2023, and Respondent withdraws that

argument. Resp’t Am. Reply (ECF No. 52).

Under the well-established Supreme Court precedent of Strickland v. Washington, 466

U.S. 668 (1984), a petitioner alleging the ineffective assistance of counsel must show that

“counsel’s performance was deficient” and the “deficient performance prejudiced the defense.”

466 U.S. at 687. To establish deficiency and prejudice, a petitioner “must show that counsel’s

representation fell below an objective standard of reasonableness” and “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Id. at 688, 694. Unless a petitioner “makes both showings, it cannot be said that

the conviction...resulted from a breakdown in the adversary process that renders the result

unreliable.” Id. at 687.

Judicial review of an attorney’s performance under Strickland is “highly deferential” and

must afford counsel “wide latitude…in making tactical decisions.” Id. at 689. “A fair assessment

of attorney performance requires that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the

conduct from counsel’s perspective at the time.” Id. at 689. Further, a “doubly deferential”

standard applies when “a federal court reviews a state court’s Strickland determination.” Cheney

v. Washington, 614 F.3d 987, 995 (9th Cir. 2010). On federal habeas review, the state court

“must be granted a deference and latitude that are not in operation when the case involves review

under the Strickland standard itself.” Richter, 562 U.S. at 101.

In Ground I(A), Petitioner claims that his trial counsel failed to cross-examine SM to

highlight the inconsistency of her allegations and show her susceptibility to persuasion. In

Ground I(B), Petitioner asserts that trial counsel unreasonably failed to object to Detective

King’s hearsay testimony about PM’s statements and use of the word “violar” when describing

Petitioner’s abuse of SM. Petitioner argues that no strategic advantage could have been gained

by failing to cross-examine the complaining witness or failing to object to inadmissible hearsay.

The PCR court rejected these claims, as follows:

There is no question that Detective King’s testimony regarding [PM]’s statement

contained hearsay and at times double hearsay. However, it is evident from the

transcript that part of trial counsel’s strategy was to show all of the contradictory

statements made by SM and [PM] during the investigation and at trial.…It is

evident that counsel made a strategic decision to not object to the hearsay from

[PM] and in fact to emphasize it…. [Counsel’s] outline shows that trial counsel’s

plan was to highlight that the victim initially said that nothing had happened, that

[PM] was the one who used the term “violar” – not the victim, and that the victim

was not specific in her initial disclosures to [PM].…Given the facts of this case,

the strategy was a reasonable strategy.

***

Petitioner did not prove that his trial attorney failed to exercise reasonable

professional skill and judgment in failing to cross-examine SM. Trial counsel

built the defense case around SM’s inconsistent statements.… Trial counsel

explained to the court that the court would hear upwards of ten different

allegations all independent and different from one another as to what exactly SM

alleged petitioner did to her, from SM’s first statement to [PM], to the allegations

police responded to, to the CARES interview, to SM’s contemporaneous

statements.… On her direct examination, counsel pointed out that SM was “all

over the board” and that SM’s testimony included “expressions of confusion and

lack of understanding.”

***

During closing arguments, trial counsel’s main argument was that the victim had

been “consistently inconsistent.” He played audio of the victim’s testimony. He

listed all the inconsistencies of SM’s disclosures – including the initial 911 call

and her denials of touching to her brother, before grand jury, and in her testimony.

He argued that SM had said something similar to “I don’t know” 15 different

times in her disclosures….When a complaining witness’s contradictions are

already in the record it is often a better strategy to not confront the witness with

the contradiction on cross-examination to avoid giving them an opportunity to

explain away the contradictions…. Counsel’s trial strategy to not cross-examine

SM was a reasonable strategy.

Resp’t Ex. 133 at 7-9. Petitioner fails to show that the PCR court unreasonably applied

Strickland when denying his claims.

As the PCR court found, counsel’s chosen strategy emphasized SM’s inconsistent

statements and suggested that SM had been coached or manipulated. For example, counsel

elicited testimony that, during her grand jury testimony, SM initially denied that Petitioner “had

ever done anything to her” before being reminded about her CARES interview. Resp’t Ex. 103 at

134. Counsel also elicited testimony reflecting that the original call to the police reported that

Petitioner touched SM on her “behind,” that SM initially told PM ”nothing” had happened, and

that SM later reported Petitioner had touched her only with his hand. Resp’t Ex. 103 at 123, 129-

30, 134, 151. During argument, counsel also emphasized the numerous times on direct

examination that SM denied knowing or remembering what happened with Petitioner or

provided inconsistent answers when asked how Petitioner touched her. Resp’t Ex. 103 at 358-60,

393-404, 410-11. Finally, counsel argued that interviewers employed leading questions with SM

and suggested that SM was susceptible to their influence and choice of words. Resp’t Ex. 103 at

397. Thus, even though Petitioner’s counsel did not cross-examine SM, the record reflects that

counsel repeatedly highlighted the inconsistencies in SM’s statements.

Similarly, counsel’s questioning of Detective King was intended to cast doubt on who

originally used the word “violar” when reporting Petitioner’s conduct. During the cross-

examination of Detective King, counsel emphasized that SM’s description of Petitioner’s abuse

was reported to the police through several different people and asked whether it was “unclear

who was choosing the words at that point what had happened the night before.” Resp’t Ex. 103

at 124. Detective King ultimately acknowledged that “the information did come through multiple

people.” Resp’t Ex. 103 at 125. Counsel also questioned whether Detective King had asked PM

what the term “violar” meant to him, and Detective King admitted that he had not. Resp’t Ex.

103 at 131. Detective King also testified that it only “seemed like” SM had used the word

“violar” when talking to PM but he admitted that he was not certain. Resp’t Ex. 103 at 131-32.

Counsel highlighted the lack of clarity and argued:

Detective Scott King and Matt Smith acknowledge that they are not aware which

witness selected this word. They don’t know if this is a word that generated from

[SM] or if this is a word that generated from [PM]. Later on, both children,

however, indicate that they’re not sure or do not have a clear understanding of

what rape is, what violar is.

Resp’t Ex. 103 at 396; see also Resp’t Ex. 103 at 402.

As noted by the PCR court, the record also reflects that counsel prepared an outline

evincing the intent to elicit testimony from Detectives King and Smith about PM’s statements to

bolster the defense strategy that SM gave conflicting reports about what happened with

Petitioner. Resp’t Ex. 131. Finally, counsel objected to other hearsay testimony, e.g., Resp’t Ex.

103 at 140, 209, lending support to the PCR court’s conclusion that counsel’s lack of objection to

Detective King’s hearsay testimony was intentional and strategic. Counsel’s decision was

reasonable, given the defense strategy of emphasizing inconsistencies in PM’s and SM’s reports

of the abuse.

In sum, the PCR court reasonably found that counsel’s decisions were strategic and were

not based on ignorance, a misunderstanding of the law, or lack of preparation. See Hinton v.

Alabama, 571 U.S. 263, 274 (2014) (“An attorney’s ignorance of a point of law that is

fundamental to his case combined with his failure to perform basic research on that point is a

quintessential example of unreasonable performance under Strickland”); see also Williams, 529

U.S. at 395; Kimmelman v. Morrison, 477 U.S. 365, 385 (1986). As such, counsel’s strategic

choices and the PCR court’s decision are entitled to deference by this Court, and Petitioner fails

to show that the PCR court unreasonably applied clearly established federal law when rejecting

his claims.

CONCLUSION

Petitioner is not entitled to habeas relief and the Amended Petition (ECF No. 37) is

DENIED. A Certificate of Appealability is DENIED on the basis that 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 January, 2025.

s/ Michael J. McShane

MICHAEL J. MCSHANE

United States District Judge