Galindo v. Cain

• Decision Date: 01 July 2019
• Docket Number: Case No. 2:17-CV-00105-MO
• Parties: ALFREDO P. GALINDO, Petitioner, v. BRAD CAIN, Respondent.
• Court: U.S. District Court — District of Oregon

ALFREDO P. GALINDO, Petitioner, v. BRAD CAIN, Respondent.

Case No. 2:17-CV-00105-MO

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

July 1, 2019

OPINION AND ORDER

Nell Brown

Assistant Federal Public Defender

101 S.W. Main Street, Suite 1700

Portland, Oregon 97204

Attorney for Petitioner

Ellen F. Rosenblum, Attorney General

Samuel A. Kubernick, Assistant Attorney General

Department of Justice

1162 Court Street NE

Salem, Oregon 97310

Attorneys for Respondent

MOSMAN, District Judge.

Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his Marion County convictions and resulting 300-month sentence dated June 2, 2010. For the reasons that follow, the Amended Petition for Writ of Habeas Corpus (#17) is denied.

BACKGROUND

Petitioner's stepdaughter, Mandy, operated a daycare business within her apartment. As part of that business, she watched Kandra B.'s three children, including her four-year-old daughter, J.B. One day J.B. informed Kandra that while Mandy was absent from the apartment, Petitioner touched her vagina and orally sodomized her. Kandra contacted law enforcement, and the Marion County Grand Jury indicted Petitioner on one count of Sodomy in the First Degree and one count of Sexual Abuse in the First Degree. Respondent's Exhibit 102. A jury unanimously convicted Petitioner of both charges, and the trial court imposed a 300-month prison sentence for the Sodomy conviction as well as a concurrent 75-month sentence for the Sexual Abuse conviction.¹ Respondent's Exhibit 106, p. 58.

Petitioner took a direct appeal where he alleged that this 300-month sentence violated the Eighth Amendment. He conceded in his Appellant's Brief that the claim was unpreserved for appellate review because he did not object to the sentence at thetrial level, but he asked the Oregon Court of Appeals to review the imposition of his 300-month sentence as "plain error."² The Oregon Court of Appeals affirmed the Circuit Court's decision without issuing a written opinion, and the Oregon Supreme Court denied review. State v. Galindo, 249 Or. App. 334, 378 P.3d 141, rev. denied, 352 Or. 107, 284 P.3d 485 (2012).

Petitioner next filed for post-conviction relief ("PCR") in Malheur County. Petitioner's appointed PCR attorney amended the pro se Petition to omit various claims, including claims that trial counsel was ineffective for failing to: (1) present mitigation evidence; and (2) and challenge the imposition of the mandatory minimum sentence. Petitioner did not agree with counsel's decision to omit claims he initially raised pro se. This prompted him to file a "Church v. Gladden" motion seeking their inclusion in his Amended PCR Petition.³

The PCR court held a hearing on Petitioner's Church claims and determined that the claims were either procedurally deficient or lacked merit. Respondent's Exhibit 119. Accordingly, the PCR court did not substitute counsel or compel Petitioner's appointed attorney to present Petitioner's desired claims. The PCR court did, however, find in Petitioner's favor as to the claims counselraised in the Amended PCR Petition. Specifically, it found both trial and appellate counsel to be ineffective pertaining to the imposition of fees and fines. Respondent's Exhibit 120. The Oregon Court of Appeals affirmed that decision without opinion, and the Oregon Supreme Court denied review. Galindo v. Nooth, 279 Or. App. 336, 384 P.3d 544, rev. denied, 360 Or. 697, 388 P.3d 712 (2016).

Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on January 23, 2017 and this Court appointed counsel to represent him. With the assistance of appointed counsel, Petitioner filed his Amended Petition in which he raises the following grounds for relief:

1. Trial counsel failed to conduct effective pretrial preparation and investigation, including failing to investigate and present witnesses, obtain records, conduct mitigation investigation, and consult with or retain experts;

2. Trial counsel failed to move to suppress evidence, including statements Petitioner allegedly provided to police;

3. Trial counsel failed to object at trial to improper vouching testimony by witnesses and statements by the prosecutor during closing argument, including statements made by the detective, the nurse, and the prosecutor that vouched for J.B.'s credibility or the credibility of her disclosures;

4. Trial counsel failed to object at sentencing: (a) to the denial of Petitioner's right to allocution; and (b) to the imposition of a 25-year sentence that was constitutionally disproportionate in violation of the Eighth Amendment;5. The trial court erred in admitting prejudicial vouching evidence during trial and closing arguments in violation of the Fourteenth Amendment;

6. The trial court erred in imposing a sentence in violation of the Eighth Amendment's prohibition on cruel and unusual punishment; and

7. The prosecutor made improper statements during closing argument, including vouching for the credibility of the victim and using statements Petitioner made to officers knowing that they were taken in violation of his state and federal constitutional rights.

Respondent asks the Court to deny relief on the Petition because: (1) with the possible exception of Ground Six, all of Petitioner's claims are procedurally defaulted; and (2) even if Petitioner could circumvent the procedural bar as to Ground Six where he failed to make a trial-level objection to the legality of his sentence, the trial court did not contravene or unreasonably apply federal law when it imposed the 300-month sentence for the Sodomy conviction.

DISCUSSION

I. Unargued Claims

As noted above, Petitioner raises seven grounds for relief in his Amended Petition. In his supporting memorandum, however, Petitioner chooses to brief only two of his grounds for relief: (1) the Ground Four claims that trial counsel failed to move to suppress statements Petitioner allegedly made to law enforcement, failed to object to improper statements by the prosecutor in her closing arguments, and abandoned him at sentencing; and (2) the Ground Six claim that the trial court's imposition of a 300-monthsentence is unconstitutional. Where Petitioner does not argue the remainder of his claims, 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

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).

A. Ground Four: Ineffective Assistance of Counsel

Respondent argues that although Petitioner raised his Ground Four ineffective assistance of counsel claims in his pro se PCR Petition, the PCR court did not consider them because they were not included in his Amended PCR Petition. Petitioner claims that he did, in fact, fairly present his Ground Four claims because he followed all of the steps Oregon provided for him. He asserts that where he included the claims in his pro se PCR Petition and filed a Church motion promoting their inclusion in the Amended PCR Petition, he could not reasonably have been expected to do more.

Fair presentation required Petitioner to raise his claims to the Oregon Supreme Court in a context in which it would assess the merits of his claims. Petitioner did not include his Ground Four claims in his Petition for Review to the Oregon Supreme Court. Respondent's Exhibit 123. Consequently, where Oregon's highest court did not have an opportunity to pass on the merits of these claims, Petitioner failed to fairly present them. Because he can no longer present these claims in state court, they are procedurally defaulted.

1. Inadequate State Process

As an alternative argument, Petitioner contends that he should be excused from the exhaustion requirement altogether because there was no viable way for him to raise his Ground Four issues in state court thereby rendering Oregon's state corrective process ineffective to protect his rights under See 28 U.S.C. § 2254(b)(1)(B)(ii). According to Petitioner, when the PCR court refused to require counsel to include the desired pro se claims or provide substitute counsel who would pursue them, there was no way to ever have the merits of the claims considered in Oregon's courts.

As an initial matter, there is no...