Lee v. Lampert
| Citation | 607 F.Supp.2d 1204 |
| Decision Date | 24 March 2009 |
| Docket Number | No. CV 02-300-CL.,CV 02-300-CL. |
| Parties | Richard LEE, Petitioner, v. Robert LAMPERT, Respondent. |
| Court | U.S. District Court — District of Oregon |
Stephen R. Sady, Lynn Deffebach, Office of the Federal Public Defender, Portland, OR, for Petitioner.
Andrew Hallman, Jacqueline Sadker, Summer R. Gleason, Department of Justice, Salem, OR, for Respondent.
Petitioner Richard Lee brings this action pursuant to 28 U.S.C. § 2254, challenging his 1995 state court convictions on two counts of first degree sexual abuse and two counts of sodomy. Respondent argues that Lee's petition was not filed in time and therefore is procedurally barred, and he does not qualify under the "actually innocent" gateway recognized in Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Respondent also contends the petition fails on the merits.
On March 11, 2008, Magistrate Judge Clarke filed his Report and Recommendation, which concludes the petition should be denied on procedural grounds. Report and Recommendation p. 14.
Petitioner timely objected. The matter is now before me for de novo review pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed. R.Civ.P. 72(b).
Beginning in October 1993, Daniel Hendricks and his wife paid Cheryll Lee to provide childcare services for the three Hendricks children at Cheryll's apartment, from approximately 6:00 a.m. to 3:30 p.m.
Cheryll's boyfriend, Robert Nachand, resided with Cheryll. He usually was home from around 9:00 a.m. until evening. Robert had been indicted for molesting two young girls he was babysitting (and reportedly molested a third). Robert had admitted other episodes of sexual conduct with children. Cheryll knew Robert Nachand was not to be left alone with children. Cheryll acknowledges she left four-year old Matthew Hendricks alone with Robert on at least five occasions while she ran errands.
Cheryll's ex-husband, Larry Lee, was indicted for molesting his three-year old niece in 1992. Larry Lee entered a no contest plea and was taken into custody on or about November 23, 1993. Until then, Larry Lee sometimes visited Cheryll's apartment when the Hendricks children were present.
Petitioner Richard Robert Lee is the brother of Larry Lee, and Cheryll's ex-brother-in-law. Richard visited Cheryll's apartment about twice a month during the Fall of 1993, or perhaps more frequently.
In mid-October—roughly two to three weeks after he started going to Cheryll's apartment for daycare—Matthew began wetting his bed, throwing temper tantrums, and crying that he didn't want to go to Cheryll's apartment. Matthew preferred that Cheryll come to his home instead. In January 1994, Cheryll began baby-sitting the three children at the Hendricks home.
In late February 1994, Matthew's mother and a friend were discussing child sexual abuse. During that conversation, Matthew volunteered that Robert Nachand had fondled and fellated Matthew, and that Matthew performed similar acts upon Robert. Matthew said this happened several times when Cheryll was not home. Robert had let Matthew play Nintendo as an inducement to cooperate. Matthew's mother notified the police. Cheryll eventually was terminated as the Hendricks' baby-sitter.
On March 14, 1994, Matthew was questioned by Detective Carter, with the aid of anatomically correct drawings. Matthew volunteered information about abuse by Robert. The police report describes what Matthew told and showed the officer, including sexual acts Robert performed on Matthew and vice versa. Matthew said this occurred on four to six occasions. Carter's report states that Matthew did not mention "any other sex abuse that occurred to him or his sisters."1
Robert Nachand initially denied molesting Matthew, but eventually entered into a plea bargain. Nachand pled guilty to sexual abuse and was sentenced to 23 months in prison. In return, the prosecutor dropped a sodomy charge that could have sent Nachand to prison for many years.
In June 1994, Matthew's father, Daniel Hendricks, saw Richard Lee walking in the neighborhood and asked Matthew whether Richard also had molested him. Daniel says Matthew responded affirmatively. Daniel reportedly then questioned Matthew, possibly on more than one occasion.
On July 1, 1994, Daniel brought Matthew (now five) to the police station for an interview with Detective Fowler. Matthew indicated to Detective Fowler that he was at the police station because he had been touched in the groin. Daniel remained in the room during the interview. Fowler utilized anatomically correct dolls. One was designated Robert, one Richard, and one as Matthew. Fowler says he had Matthew demonstrate, with the dolls, what sex acts occurred with each person. Fowler photographed the positioned dolls. Detective Fowler deliberately did not make a video or audio recording of the questioning. Fowler later testified that recording of interviews is specifically "discouraged" in child sex abuse cases in Linn County, Oregon.
Later that month, Fowler questioned Cheryll. She initially stated that Richard left whenever the children came over, because he was not supposed to be around children. When threatened with prosecution for obstructing an investigation, Cheryll reportedly told Fowler that on at least three occasions, she had gone to the store briefly, leaving Richard and the three children at the apartment. Approximately two days after one such occasion, Matthew told Cheryll that Richard Lee had "touched his pee-pee." Cheryll says she confronted Richard, who replied that he must have accidentally touched Matthew while they were wrestling the other day, when she was at the store.
On September 27, 1994, Richard Lee was indicted for two counts of Sexual Abuse I and two counts of Sodomy I. Oregon Rule of Evidence § 412 (1995), sometimes called the "Rape Shield Law," prohibits introducing "evidence of a victim's past sexual behavior" in a prosecution for certain enumerated offenses unless the conditions stated in O.R.E. § 412 are met. The party seeking to offer the evidence must file a pre-trial motion and make a written offer of proof.
Richard Lee's attorney sought leave to offer evidence regarding the abuse of Matthew by Robert Nachand, who by now had entered a guilty plea. Lee's attorney argued that the sexual acts involving Robert occurred in the same location, during the same time period, and involved much the same conduct as the allegations regarding Richard Lee. The motion was denied, on the ground that Matthew was capable of distinguishing between Richard and Robert, and because of Cheryll's statement that Richard had acknowledged some type of touching could have occurred when he and Matthew were wrestling.
A jury trial was held on April 17-18, 1995. By then, Matthew was almost six.
Excerpts from direct examination of Matthew Hendricks
The prosecutor had Matthew count to twenty, recite the alphabet ("now I know my ABCs"), and state the words for different body parts. For the most part, Matthew responded correctly, though some ambiguity was evident:
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