White v. Nooth, Case No. 2:16–cv–323–SB

• Court: United States District Courts. 9th Circuit. United States District Court (Oregon)
• Writing for the Court: Michael H. Simon, District Judge.
• Citation: 322 F.Supp.3d 1077
• Parties: Joshua Jake WHITE, Petitioner, v. Mark NOOTH, Respondent.
• Docket Number: Case No. 2:16–cv–323–SB
• Decision Date: 11 June 2018

322 F.Supp.3d 1077

Joshua Jake WHITE, Petitioner,

v.Mark NOOTH, Respondent.

Case No. 2:16–cv–323–SB

United States District Court, D. Oregon.

Signed June 11, 2018

Nell Brown, Federal Public Defender's Office, Portland, OR, for Petitioner.

Kristen E. Boyd, State of Oregon Department of Justice, Salem, OR, for Respondent.

OPINION AND ORDER

Michael H. Simon, District Judge.

United States Magistrate Judge Stacie F. Beckerman issued Findings and Recommendation ("F & R") in this case on January 25, 2018. Judge Beckerman recommended that the Court deny Petitioner's Amended Petition for Writ of Habeas Corpus and dismiss the proceeding with prejudice. Judge Beckerman also recommended that the Court issue a Certificate of Appealability on the issue of whether cause exists to excuse Petitioner's procedural default of Ground Eight. The State objects to Judge Beckerman's finding that Ground Eight is timely because it relates back to Ground Seven in Petitioner's original habeas petition, and to Judge Beckerman's recommendation that the Court grant a Certificate of Appealability. Petitioner objects to Judge Beckerman's general conclusion that habeas relief should be denied, to her conclusion that an evidentiary hearing was not necessary, to Judge Beckerman's findings on Grounds One and Six for the reasons stated in Petitioner's previous filings, and to Judge Beckerman's conclusion that cause does not exist to excuse Petitioner's procedural default of Ground Eight. The Court has reviewed Petitioner's original and amended habeas petitions, both sides' briefs before Judge Beckerman, Judge Beckerman's F & R, and the parties' objections and responses. The Court adopts Judge Beckerman's Findings and Recommendation with respect to Grounds One through Seven, and with respect to the timeliness of Ground Eight. The Court concludes, however, that habeas relief is warranted based on Petitioner's Ground Eight.

STANDARDS

Under the Federal Magistrates Act ("Act"), the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). If a party files objections to a magistrate's findings and recommendations, "the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. ; Fed. R. Civ. P. 72(b)(3).

For those portions of a magistrate's findings and recommendations to which neither party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn , 474 U.S. 140, 152, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ("There is no indication that Congress, in enacting [the Act], intended to require a district judge to review a magistrate's report to which no objections are filed."); United States v. Reyna–Tapia , 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court must review de novo magistrate's findings and recommendations if objection is made, "but not otherwise"). Although in the absence of objections no review is required, the Act "does not preclude further review by the district judge[ ] sua sponte ... under a de novo or any other standard." Thomas , 474 U.S. at 154, 106 S.Ct. 466. Indeed, the Advisory Committee Notes to Fed. R. Civ. P. 72(b) recommend that "[w]hen no timely objection is filed," the Court review the magistrate's recommendations for "clear error on the face of the record."

DISCUSSION

A. Grounds One Through Seven

1. Grounds One and Six

Petitioner objects to Judge Beckerman's findings on Ground One and Ground Six for the reasons stated in Petitioner's previous filings. Petitioner provides no other specific objects to Judge Beckerman's Findings and Recommendation. The Court has reviewed Petitioner's previous arguments relating to Grounds One and Six and adopts Judge Beckerman's Findings and Recommendation with respect to these grounds.

2. Grounds Two, Three, Four, Five, and Seven

Petitioner also purports to object to Judge Beckerman's general conclusion that Petitioner's claim for habeas relief should be denied. A "general" objection to a Finding and Recommendation does not meet the "specific written objection[ ]" requirement of Rule 72(b) of the Federal Rules of Civil Procedure. See, e.g., Velez–Padro v. Thermo King de Puerto Rico, Inc. , 465 F.3d 31, 32 (1st Cir. 2006) ("Conclusory objections that do not direct the reviewing court to the issues in controversy do not comply with Rule 72(b)"). Thus, the Court construes Petitioner's arguments as objecting only to Grounds One, Six, and Eight. The Court reviews Judge Beckerman's findings on the remaining grounds for clear error and finds none. Thus, Judge Beckerman's Findings and Recommendation on these grounds is adopted.

3. Evidentiary Hearing

Petitioner also objects to Judge Beckerman's recommendation that the district court deny an evidentiary hearing. Petitioner argues that, at a minimum, this Court should hold an evidentiary hearing on the alleged procedural default of Ground Eight. The Court concludes that no evidentiary hearing is necessary.

B. Ground Eight

The State objects to Judge Beckerman's finding that Ground Eight is timely because it relates back to Ground Seven in Petitioner's original habeas petition. The Court has reviewed this finding de novo and adopts Judge Beckerman's Findings and Recommendation on this ground. The State also objects that Ground Eight is futile; as discussed below, the Court disagrees.

1. Relevant Testimony

At trial, Noelle Gibson, a nurse at the Children's Center of Clackamas County, testified that she examined the alleged victim in this case, C.Y. ECF 19–1 at 166–201. Nurse Gibson testified that the primary role and function of the Children's Center is to complete a medical evaluation of children suspected to be victims of abuse, to conduct an interview, and to make treatment recommendations. Id. at 169. Nurse Gibson conducted a physical examination of C.Y., and was also present during an interview in which C.Y. indicated that she had inappropriately been touched.

The portions of Nurse Gibson's direct examination relevant to this dispute are as follows:

Q. ... Have you become familiar when you've worked both at OHSU and at the Children's Center in your professional capacity about manners or mechanisms to which children disclose, younger children disclose sexual abuse?

A. Yes.

Q. Okay. Is it uncommon for children to disclose incrementally?

A. No, it's not.

Q. Okay. And when I say disclose incrementally what does that mean to you?

A. Oftentimes kids will make a disclosure to a person that they feel comfortable and safe with and talk about a little bit of what has happened, and they do this to kind of test of [sic] the waters, see what kind of response they're going to get, see what negative things happen, what positive things happen, and if they feel supported and feel that they're going to be kept safe, then oftentimes as time passes and as they feel safer more information is disclosed.

Q. Okay. And is this phenomenon unusual or controversial in your field?

A. It's not unusual.

Q. Okay. Is it fair to say that a number of different variables can effect [sic] how a child discloses sexual abuse?

A. Yes.

Q. At the conclusion of the interview did you go through a number of or make to Ms. Crystal Young [complainant's mother] a number of treatment recommendations?

A. Yes, we did.

Q. Okay. And were some of those treatment recommendations counseling to deal with the issue of sexual abuse?

A. Yes.

Q. I guess you normally—Maybe you didn't do this personally, but was it the standard at the Children's Center to give a list of service providers?

A. Yes.

ECF 19–1 at 193–195 (emphasis added). On cross-exam, Nurse Gibson testified that she did not know for sure, in C.Y.'s case, whether C.Y. was in fact "testing the waters" by incrementally disclosing. Nurse Gibson also testified that she found no physical evidence of abuse. Id. at 196.

In Ground Eight, Petitioner argues that trial counsel was inadequate for failing to object to Nurse Gibson's testimony regarding incremental disclosures, and to Nurse Gibson's testimony that she recommended that C.Y. undergo "counseling to deal with the issue of sexual abuse." Petitioner argues that this latter testimony implied that Nurse Gibson had concluded that C.Y. was sexually abused, thereby improperly "vouching for" or "bolstering" C.Y.'s credibility.

2. Martinez v. Ryan Standard for Excusing Procedural Default

Petitioner admits that Ground Eight was procedurally defaulted, but argues that the procedural default should be excused under Martinez v. Ryan , 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). The Supreme Court has explained:

[W]here state law requires prisoners to raise claims of ineffective assistance of trial counsel "in an initial-review collateral proceeding," rather than on direct appeal ... "a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if" the default results from the ineffective assistance of the prisoner's counsel in the collateral proceeding.

Davila v. Davis , ––– U.S. ––––, 137 S.Ct. 2058, 2065, 198 L.Ed.2d 603 (2017) (quoting Martinez , 566 U.S. at 16–17, 132 S.Ct. 1309 ) (citation omitted). Further, the Ninth Circuit has explained:

To demonstrate cause and prejudice sufficient to excuse the procedural default, ... [a petitioner must] make two showings. First, to establish "cause," [the petitioner] must establish that his counsel in the state postconviction proceeding was ineffective under the standards of Strickland . Strickland , in turn, requires him to establish that both (a) post-conviction counsel's performance was deficient, and (b) there was a reasonable probability that, absent the deficient performance, the result of the post-conviction proceedings would have been different. Second, to establish "prejudice," he must establish that his "underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner

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