Bailey v. Rae

• Decision Date: 13 August 2003
• Docket Number: No. 02-35144.,02-35144.
• Citation: 339 F.3d 1107
• Parties: Michael Jon BAILEY, Petitioner-Appellant, v. Diane RAE, Oregon State Board of Parole and Post Prison Supervision, Chairperson, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

339 F.3d 1107

Michael Jon BAILEY, Petitioner-Appellant, v. Diane RAE, Oregon State Board of Parole and Post Prison Supervision, Chairperson, Respondent-Appellee.

No. 02-35144.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 5, 2003 — Seattle, Washington.

Filed August 13, 2003.

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Anthony D. Bornstein, Assistant Federal Public Defender, Portland, Oregon, for the petitioner-appellant.

Hardy Myers, Attorney General; Mary H. Williams, Solicitor General; and Steven R. Powers, Assistant Attorney General, Salem, Oregon, for the respondent-appellee.

Appeal from the United States District Court for the District of Oregon; Malcolm F. Marsh, District Judge, Presiding. D.C. No. CV-00-06198-MA.

Before: ANDREW J. KLEINFELD, M. MARGARET McKEOWN, Circuit Judges, and CHARLES R. BREYER, District Judge.^*

OPINION

McKEOWN, Circuit Judge:

This petition for writ of habeas corpus presents the question whether a state prosecutor's failure to disclose therapy reports concerning a victim's mental capacity constitutes a due process violation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The state criminal convictions at issue, for sexual abuse and sexual penetration, require that the victim be incapable of consent due to a mental defect. Because the reports in question are exculpatory in nature and would have affected the trial in such a way as to undermine our confidence in the jury's verdict, we conclude that a Brady violation occurred. Under the circumstances, the state court's decision was both contrary to, and an unreasonable application of, federal law. We reverse the district court's denial of the petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of a tragic episode involving the sexual abuse of a teenage girl by a trusted family friend and community leader. In March of 1995, fifteen-year-old Rayna Winters discovered a video camera in her bedroom ceiling at her home in Powers, Oregon. The camera was installed in the attic and contained a scope that extended through a hole in the ceiling. Winters alerted her mother to the camera, and her mother reported the matter to the Children Services Division ("CSD") of the State of Oregon (the "State"). CSD, in turn, contacted the Oregon State Police, and an investigation ensued.

At the time the video camera was discovered, Winters' mother was dating the local Chief of Police, petitioner Michael Jon Bailey. Bailey was living at the Winters' house and became a suspect in the state police investigation. The State, believing Bailey not only installed the video camera but had otherwise sexually abused Winters, eventually charged Bailey with eleven offenses relating to his sexual abuse of Winters. Three of the offenses were predicated upon Winters' alleged inability to consent due to a mental defect. In two counts of the Indictment, the State charged Bailey with sexual penetration with a foreign object, alleging as an element of the offense that Winters was "incapable of consent by reason of mental defect." Or.Rev.Stat. § 163.411.¹ In another count, the State charged Bailey with sexual abuse in the third degree, alleging that Winters was "a person who was mentally defective." Or.Rev.Stat. § 163.415.²

Bailey pled not guilty to all counts. Prior to trial, he requested an in camera review by the trial court of any CSD files pertaining to Winters. The trial court reviewed the files and ordered disclosure to the defense of certain records but not others. Meanwhile, the State, which had access to the CSD files, submitted a witness list that included Janet Ford, a professional counselor for CSD who had provided therapy to Winters over an extended period as a result of previous sexual abuse. Ford was a potential witness for the purpose of proving that Winters had a mental defect.

Despite Ford's qualifications and contacts with Winters, on the eve of trial the State decided instead to call William Berrian. Berrian, a school psychologist who had evaluated Winters when she was fourteen years old, reported the results of a battery of tests he had conducted to determine Winters' need for continued special education services. Berrian testified that Winters scored a 58 on a standard IQ test, which officially placed her in the "intellectually deficient" range. On a Developmental Test of Visual Motor Integration, Winters scored in the "developmentally delayed" range and was classified as the age equivalent of six years, three months. Based on the results of these and various other tests, Berrian placed Winters in the "intellectually deficient range in the IQ test and severely delayed on the other tests."

The State also called Winters herself as a witness. She testified generally about Bailey's sexual activity with her. On cross-examination, the defense asked Winters a number of related questions, including whether Winters had ever had counseling about sex. Winters replied in the affirmative. Winters also stated that she knows what is "right to do about sex and what is wrong." She stated that this is the reason she refused a request by Bailey to touch him, and that she knew that "that's not something a person is supposed to do."

Bailey was convicted on seven counts, including the two counts he challenges here. The verdicts on the challenged counts were not unanimous. On Count One (sexual penetration), the verdict was ten to two. On Count Eight (sexual abuse), it was eleven to one.

At sentencing it became clear that certain potentially exculpatory documents from the CSD file had not been disclosed to the defense. The court, recognizing that it had not realized their significance upon its initial review, ordered disclosure of the documents. The newly-disclosed material included reports from Ford, the therapist who had previously counseled Winters and was originally listed as a potential witness for the State. One report, completed in January 1994, stated:

Rayna has made progress in individual therapy regarding the sexual abuse issues. She now knows the difference between `good' touch and `uncomfortable' touch and knows she has the right to say `No' to inappropriate touch. Even though Rayna is developmentally delayed, she now can easily tell what are `okay' touches or `not okay' touches with little hesitation.

Another report, completed in March 1994, stated:

Rayna is developmentally delayed and will continue to be an easy target for further victimization without close supervision by her mother. Rayna does know the difference between `good touch' and `uncomfortable touch' and knows she has the right to say `No' to inappropriate touch. She also can easily tell the difference between the touches which are okay and those which are not.

According to an affidavit from Bailey's attorney, there were also undisclosed reports from 1992 and 1993, the former of which stated that Winters has "limited ability to protect self" and the latter of which contained evidence that Winters had the capability of distinguishing between right and wrong in sexual matters.

Upon receiving the reports, Bailey filed a supplemental motion for a new trial. He argued that Ford's reports contained important and material new evidence, namely statements that negated the State's allegation that Winters was mentally defective and incapable of consent. After a hearing, the trial court denied the motion, finding that the undisclosed documents were not prejudicial. Bailey appealed. The Oregon Court of Appeals affirmed without a written opinion, and the Oregon Supreme Court denied his petition for review.

Bailey's petition for state post-conviction relief was denied at all levels. He timely filed a federal petition for habeas corpus relief pursuant to 28 U.S.C. § 2254, challenging the validity of his convictions on counts One and Eight based on the State's alleged Brady violation. The district court denied the petition.

II. DISCUSSION

A. The Standard for Relief Under AEDPA

We review de novo the district court's denial of Bailey's habeas petition. See Killian v. Poole, 282 F.3d 1204, 1207 (9th Cir.2002). In reviewing the state court's decision, we are bound by the standards in the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254(d), which states that habeas relief may not be granted by a federal court unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or was "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). Because Bailey's challenge involves only a question of law, we review his petition under the "contrary to" and "unreasonable application" clauses of § 2254(d)(1).

The Supreme Court recently instructed that a state court decision is "contrary to" clearly established federal law "if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] 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 [its] precedent." Lockyer v. Andrade, ___ U.S. ___, ___, 123 S.Ct. 1166, 1173, 155 L.Ed.2d 144 (2003) (internal quotation marks omitted). Relief may be granted under the "unreasonable application" clause of § 2254(d)(1) "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. (internal quotation marks omitted). The state court's application of clearly established Supreme Court precedent must be "objectively unreasonable," not merely incorrect or erroneous. Id. Both clauses figure into our analysis here.

Because the Oregon Supreme Court denied review of Bailey's direct appeal and habeas petition without...