Gandarela v. Johnson

• Decision Date: 18 December 2001
• Docket Number: No. 00-35596.,00-35596.
• Citation: Gandarela v. Johnson, 286 F.3d 1080 (9th Cir. 2001)
• Parties: Rodrigo GANDARELA, Petitioner-Appellant, v. Dan JOHNSON, Superintendent, Snake River Correctional Facility, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

286 F.3d 1080

Rodrigo GANDARELA, Petitioner-Appellant, v. Dan JOHNSON, Superintendent, Snake River Correctional Facility, Respondent-Appellee.

No. 00-35596.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 6, 2001.

Filed December 18, 2001.

Amended March 11, 2002.

Lucy J. Brehm, Stephen R. Sady (argued), Assistant Federal Public Defender, Portland, Oregon, for the petitioner-appellant.

Janet A. Klapstein, (argued), Assistant Attorney General, Salem, OR, for respondent-appellee.

Appeal from the United States District Court for the District of Oregon; Ann L. Aiken, District Judge, Presiding. D.C. No. CV-98-00890-AA.

Before HUG, T.G. NELSON and GOULD, Circuit Judges.

ORDER

The panel recalls the mandate that issued on February 7, 2002.

The motion for reconsideration of petition for rehearing and the petition for rehearing en banc are DENIED except as the opinion is hereby amended.

The opinion filed December 18, 2001, is amended as follows:

1) In the citations following the first sentence of the third paragraph of section II of the Discussion section, delete "Sistrunk v. Armenakis, 271 F.3d 1174, 1179-80 (9th Cir.2001);"

2) Replace the second sentence of the third paragraph of section II of the Discussion section and the citations that follow the sentence with, "Rather, a petitioner may pass through the Schlup gateway by promulgating evidence that significantly undermines or impeaches the credibility of witnesses presented at trial, if all the evidence, including new evidence, makes it "more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Schlup, 513 U.S. at 327, 115 S.Ct. 851."

3) Replace the first sentence of the fourth paragraph of section II of the Discussion section with, "The issue before us is whether Valencia and Steele's impeachment evidence is sufficiently substantial to make it more likely than not that no reasonable juror would have found Gandarela guilty beyond a reasonable doubt."

4) Replace the first sentence (including the block quote) of the fifth paragraph of section II of the Discussion section and the citations that follow that sentence with, "In Carriger we held that new evidence that undermines the credibility of the prosecution's case may alone suffice to get an otherwise barred petitioner through the Schlup gateway. We did not hold that such evidence necessarily must get a petitioner through the Schlup gateway. Whether evidence is sufficient to get a petitioner through the Schlup gateway depends on whether the evidence is such that it is `more likely than not that no reasonable juror would have found petitioner guilty ...' Schlup, 513 U.S. at 327, 115 S.Ct. 851."

5) Replace the first sentence of the sixth paragraph of section II of the Discussion section with, "This evidence was not sufficient to make it more likely than not that no reasonable juror would have found Gandarela guilty and thus make a colorable claim of actual innocence."

The panel directs the Clerk to reenter judgment. The parties may seek panel rehearing or rehearing en banc thereafter within the time limits specified by FRAP 40.

OPINION

RONALD M. GOULD, Circuit Judge.

Oregon state prisoner Rodrigo Gandarela appeals the district court's order denying his 28 U.S.C. § 2254 petition for writ of habeas corpus challenging his 1994 jury trial conviction for sexual abuse of a minor. The victim, a four-year-old child, did not testify at trial. She testified at a competency hearing at which the defendant was not present. At trial, the child victim's hearsay statements about the incident of abuse were introduced through other witnesses who heard the statements. Gandarela failed to assert a Confrontation Clause claim on direct appeal, thus procedurally defaulting on that claim. By offering new evidence to show "actual innocence," Gandarela now attempts to establish a procedural "gateway" permitting review of his defaulted claim.

The district court denied Gandarela's petition for writ of habeas corpus. Gandarela appeals. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Rodrigo Gandarela was tried in 1994 on charges of Rape in the First Degree, Sodomy in the First Degree, Unlawful Sexual Penetration in the First Degree, and Sexual Abuse in the First Degree, all involving a four-year-old victim. He was acquitted on the Rape charge and convicted on the other three charges.

His victim, A.V.,¹ was four years old when Gandarela allegedly molested her. Gandarela had been a transient sleeping in a local park until the victim's mother agreed to allow him to stay in the garage of her home during the winter months.

A. The Incident

On the night of the incident, Shannon S.² was babysitting A.V. and A.V.'s elder sisters, Christina V. and Lisa V. A.V.'s mother was out of the home. The three older girls were in the bathroom for a time attempting to pull a loose baby tooth out of Lisa's mouth, while petitioner and A.V. were elsewhere in the house. Shannon testified at trial that she observed Gandarela kissing the victim that night.³ Christina testified at trial that she saw Gandarela leaning over the couch toward A.V. Christina testified that she heard A.V. state that she was scared and saw A.V. move away from Gandarela. Christina also testified that she then saw Gandarela "begging [A.V.] to come back on the couch."

Shannon testified that A.V. told her, shortly after the incident, that Gandarela had "pulled her pants down and licked her on her private and on her bottom and that he stuck his middle finger in her private and that he told her to feel his penis, his private." Christina's testimony was similar.

The victim, A.V., told her mother what had happened when her mother returned home, and her mother reported the incident to the police. A.V. repeated her statement to the police in consistent terms. After investigating, the police took Gandarela into custody. He admitted to the police only that he had kissed the child.

A.V. was taken to Newberg Community Hospital where she was examined by Dr. Kimbrell. Dr. Kimbrell testified that A.V. had injuries that "were unexplained by the normal kind of activities of a child." Her injuries included a "superficial laceration near the introtus, which is the outside lips of the vagina," "a tear to the hymen, which is the membranous structure that covers the outlet of the vagina," and "redness."

B. Competency Hearing

A.V. did not testify at trial. However, shortly before trial, she testified in a competency hearing held in chambers, at which counsel for petitioner participated but petitioner was not present.⁴ In that hearing, while being held by her mother, A.V. described the molestation minimally, mostly through nods and head-shaking. She was capable of recognizing the difference between truth and lies, but expressed that she was so afraid of petitioner that she could not describe the crime in the courtroom. The trial court explicitly found that her fears and psychological resistance rendered her competent but "unavailable" for purposes of application of Oregon Rule of Evidence 803(18a)(b), governing hearsay statements of child sex crime victims. The court also concluded that there was sufficient corroboration and indicia of reliability to permit substantive admission of A.V.'s hearsay descriptions of the abuse.

C. Trial

At trial, A.V.'s sister and mother, as well as Shannon and the investigating officer, testified as to what they had observed on the day of the incident and what A.V. had told them. Each of these witnesses related A.V.'s contemporaneous statements about the incident. There were slight differences in the witnesses' descriptions, which appeared to reflect variations in A.V.'s statements to the witnesses. However, the variations in A.V.'s statements were such as reasonably might be anticipated from a four-year-old, and all of her statements described improper sexual contact by Gandarela. Dr. Kimbrell testified as to her examination of A.V. shortly after the incident of abuse and her findings and conclusions. Neighbor kids testified to possible inconsistent statements made by A.V. regarding the incident. Gandarela testified that he did not assault A.V. He claimed that the statement he made at the time of arrest about kissing the child was referring to a prior incident, not that day.

D. Direct Appeal and Post Conviction Review

Following conviction, Gandarela filed a notice of appeal and then voluntarily dismissed it. He subsequently filed an action for state post-conviction relief asserting that the trial court failed to ensure that he was provided with adequate and competent services of an interpreter, failed to ensure his right to testify on his own behalf, and violated his constitutional right to confront his accuser. Gandarela also claimed that he was denied effective assistance of counsel. The state court denied post-conviction relief, finding: (1) the confrontation issue was not raised on direct appeal and was thus procedurally barred; (2) Gandarela's case was fully and properly investigated and prepared, and Gandarela was effectively represented at trial; (3) the translation provided for Gandarela was adequate; and (4) Gandarela was allowed to testify on his own behalf.

Gandarela appealed from the dismissal of his post-conviction claims. On appeal, he did not challenge the dismissal of the confrontation claim as procedurally barred. The Oregon appellate court summarily affirmed the lower court's dismissal of the post-conviction claims. Gandarela filed a petition for review from the summary affirmance. The petition for review by the Oregon Supreme Court was denied and the appellate judgment was entered.

E. Habeas Petition

On July 20, 1998, Gandarela filed a pro se habeas petition. In his petition, Gandarela acknowledged that the confrontation claim was defaulted. He sought relief from the procedural bar by making a claim of "actual innocence." In support of his claim of actual...