Sullivan v. Taylor
| Docket Number | 2:17-cv-00763-MK |
| Decision Date | 01 December 2021 |
| Parties | EMMIT JOHN SULLIVAN, Petitioner, v. JERI TAYLOR, Superintendent, Eastern Oregon Correctional Institution, Respondent. |
| Court | U.S. District Court — District of Oregon |
FINDINGS AND RECOMMENDATION
Petitioner brings this Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 and challenges his sodomy convictions on Sixth Amendment grounds. Petitioner contends that his trial counsel provided constitutionally ineffective assistance by failing to object to the prosecutor's closing argument and the trial court's jury instructions. Petitioner's claims are procedurally defaulted, and he fails to show cause and prejudice to excuse the default and permit federal court review. Accordingly, the Petition should be denied.
Petitioner was charged by indictment with two counts of Sodomy in the First Degree and two counts of Sodomy in the Second Degree. Resp't Ex. 102 at 6. The charges arose from the sexual assault of BF, a thirteen-year-old girl who was petitioner's neighbor for several months in 2007.
At trial, BF testified that she met petitioner when he moved into the trailer park where she lived. Transcript of Proceedings (Tr.) at 137.[1] BF would visit petitioner's trailer to play video games, and one night petitioner began to touch her “privates” and told her to “suck his privates.” Tr. at 137-39. BF testified that petitioner unzipped his pants and she began to scream. Tr. at 140, 171. Petitioner placed his hand over BF's mouth and threatened to kill her if she did not comply. Tr. at 140, 185. BF did comply, and petitioner told BF that she could not tell anybody what had happened. Tr. at 140-41, 172. BF testified that, a few days later, petitioner told BF to pull down her pants and petitioner then put his “privates” in her “butt, ” making it bleed. Tr. at 141, 143-46 183-84. BF testified that petitioner did not threaten her with violence during the second assault, but she was still afraid of petitioner because of his previous threat. Tr. at 146; see also State v. Sullivan, 253 Or.App. 103 104-05 (2012) ().
In January 2009, BF told her brother that petitioner had assaulted and raped her. Her brother said, “You're gonna tell Dad or I am.” Tr. at 149. BF then told her father, who notified law enforcement authorities. Tr. at 149-150, 193-94, 232. During the subsequent investigation, BF underwent a recorded, forensic interview at the Child Advocacy Center. Tr. at 232-33.
Petitioner was charged with four counts of sodomy and proceeded to trial. After trial by jury in June 2009, petitioner was convicted on all charges and sentenced to consecutive and concurrent terms of imprisonment totaling 200 months. Resp't Ex. 101.
After an unsuccessful direct appeal, petitioner sought post-conviction relief (PCR) in state court. Resp't Exs 102-08. Petitioner's PCR counsel could not certify a meritorious claim for relief, and upon motion by the State, the PCR court dismissed the PCR petition for failure to state a claim. Resp't Exs. 109-14. Under Oregon law, a PCR petition dismissed for failure to state a claim is considered “meritless” and “a judgment dismissing a meritless petition is not appealable.” See Or. Rev. Stat. § 138.525(2), (3). Nonetheless, petitioner appealed the dismissal of his PCR petition and filed a Motion to Determine Jurisdiction. Resp't Ex. 115.
The Appellate Commissioner for the Oregon Court of Appeals found that Or. Rev. Stat. § 138.525(3) “renders the judgment non-appealable” and dismissed petitioner's appeal. Resp't Exs. 117-18. The Oregon Supreme Court dismissed the petition for review. Resp't Ex. 120.
On March 30, 2017, petitioner signed his federal Petition. Subsequently, this action was stayed to allow petitioner the opportunity to exhaust his state court remedies, and on February 20, 2020, petitioner's second PCR petition was dismissed on summary judgment. Resp't Exs. 122-23, 149, 154-55.
On October 22, 2020, petitioner filed an Amended Petition in this action and alleged that his trial counsel provided constitutionally ineffective assistance.
Petitioner raises two grounds for relief. In Ground One, petitioner alleges that trial counsel was ineffective by failing to object or seek curative action when “the prosecutor engaged in serial instances of misconduct” during closing argument and by failing to object or take exception to the jury instruction reciting the elements of Sodomy in the First Degree. Am. Pet. at 3-4. In Ground Two, petitioner claims that he received ineffective assistance of counsel due to the cumulative errors alleged in Ground One. Id. at 4-5.
Respondent maintains that petitioner did not fairly present his federal claims to the Oregon courts and they are unexhausted and barred from federal review through procedural default. See 28 U.S.C. § 2254(b)(1)(A); see also Baldwin v. Reese, 541 U.S. 27, 29 (2004); Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam); Coleman v. Thompson, 501 U.S. 722, 732, 735 n.1 (1991). Petitioner concedes that his claims are procedurally defaulted. See Pet'r Brief at 5, 26. However, petitioner argues that the default should be excused pursuant to Martinez v. Ryan, 566 U.S. 1 (2012), because his PCR counsel was constitutionally ineffective in failing to certify and pursue “substantial” claims of ineffective assistance of trial counsel.
In Martinez, the Supreme Court held that “procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” Martinez, 566 U.S. at 17. To satisfy Martinez, a habeas petitioner must show that: 1) the underlying ineffective assistance of trial counsel claim is substantial; 2) the petitioner had ineffective counsel during the state collateral proceeding; 3) the state collateral proceeding was the initial review proceeding for the claim; and 4) state law required the petitioner to bring the claim in the initial review proceeding. Id. at 14; Trevino v. Thaler, 569 U.S. 413, 423 (2013).
Under Oregon law, a PCR proceeding is the first designated proceeding in which a petitioner must raise claims asserting the ineffective assistance of counsel. See State v. Robinson, 25 Or.App. 675 (1976) (). To meet the remaining two elements of the Martinez exception, petitioner must demonstrate that 1) his PCR counsel's performance was constitutionally deficient under the standards of Strickland v. Washington, 466 U.S. 668 (1984); and 2) his underlying ineffective assistance of trial counsel claims are “substantial” and have “some merit.” Martinez, 566 U.S. at 14. A claim has “some merit” if “reasonable jurists” would find the claim “debatable.” Miller-El v. Cockrell, 537 U.S. 322, 336, 338 (2003).
To establish a substantial claim of ineffective assistance under Strickland, a petitioner must show that 1) “counsel's performance was deficient” and 2) 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” to Id. at 688, 694. Judicial review of an attorney's performance is “highly deferential” and counsel must be afforded “wide latitude … in making tactical decisions” during trial. Id. at 689-90.
Based on the record before the Court, trial counsel's performance was neither deficient nor prejudice and PCR counsel was not ineffective by failing to raise claims alleging the ineffective assistance of trial counsel.
Petitioner first contends that the prosecutor made improper and egregious statements during closing argument and trial counsel was deficient in failing to object to them.
Generally, prosecutors and defense attorneys are given “reasonable latitude to fashion closing arguments” and make “reasonable inferences based on the evidence.” United States v. Molina, 934 F.3d 1440, 1445 (9th Cir. 1991). Accordingly, to violate a criminal defendant's constitutional rights, “it ‘is not enough that the prosecutors' remarks were undesirable or even universally condemned.'” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citation omitted). Rather, “the relevant question is whether the prosecutors' comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.'” Id. (citation omitted). In making this assessment, courts should consider “(1) whether the prosecutor's comments manipulated or misstated the evidence; (2) whether the trial court gave a curative instruction; and (3) the weight of the evidence against the accused.” Tak Sun Tan v. Runnels, 413 F.3d 1101, 1115 (9th Cir. 2005).
Petitioner argues that the prosecutor impermissibly accused trial counsel of trying to “confuse” BF about the year in which the assaults occurred and vouched for BF's credibility in doing so. Although evidence at trial established that petitioner lived near BF for approximately six months in 2007, petitioner's counsel asked BF whether petitioner lived there in 2004, 2005, 2006, or 2008. Tr 158-59, 198. BF responded, Tr. 159. During closing argument, the prosecutor remarked that “the defense counsel did a very good job of trying to confuse [BF] as to the...
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