IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

DAVID L. MICHAEL, 

Petitioner, 

v. 

JEFF PREMO, 

Respondent. 

NELL BROWN 

Assistant Federal Public Def ender 

101 S.W. Main Street, Suite 1700 

Portland, Oregon 97204 

Attorney for Petitioner 

Ellen F. Rosenblum 

Attorney General 

SAMUEL A. KOBERNICK 

Senior Assistant Attorney General 

Department of Justice 

1162 Court Street NE 

Salem, Oregon 97310 

Attorneys for Respondent 

1 - OPINION AND ORDER 

Case No. 6:15-cv-00333-BR 

OPINION AND ORDER 
BROWN, Judge. 

Petitioner 

Department of 

is currently in the custody of the 

Corrections. He brings this habeas 

Oregon 

corpus 

proceeding pursuant to 28 U.S. C. § 2254. For the reasons set 

forth below, Petitioner's Habeas Corpus Petition (ECF No. 2) is 

DENIED, and this case is DISMISSED. 

In May 2006, a 

Petitioner with three 

BACKGROUND 

Washington County grand jury charged 

counts of first-degree unlawful sexual 

penetration, and seven counts of first-degree sexual abuse. One 

count of sexual abuse in the first degree involved Petitioner's 

step-daughter ( "B. C. ") , and the remaining counts involved the 

step-daughter's friend ("S.D."). Resp't Exs. (ECF No. 25) 101-

102; Trial Tr. at 9-11. The case was tried to a jury, during 

which the state dismissed three counts, and the trial court 

granted Petitioner's Motion for Judgment of Acquittal as to the 

count involving B.C. The jury convicted Petitioner of four counts 

of first-degree sexual abuse of S. D. Washington County Circuit 

Court Case No. C061347CR; Resp't Ex. 101; Trial Tr. (ECF No. 27) 

at 525. 

The trial court sentenced Petitioner to a total of 120 

months incarceration, followed by a period of post-prison 

supervision. Resp' t Ex. 101. Petitioner directly appealed his 

convictions, but the Oregon Court of Appeals affirmed without 

opinion, and the Oregon Supreme Court denied review. State v. 

2 - OPINION AND ORDER 
Michael, 224 Or. App. 688, 200 P. 3d 181 (2008), rev. denied, 346 

Or. 116 ( 200 9) . He then sought post-conviction relief ( "PCR") . 

Following a hearing, the PCR court denied relief. Marion County 

Circuit Court Case No. 10C19080. On appeal, the Oregon Court of 

Appeals affirmed without opinion, and the Oregon Supreme Court 

denied review. Michael v. Premo, 262 Or. App. 238, 327 P. 3d 572 

(2014), rev. denied, 356 Or. 516 (2014). 

On February 25, 2015, Petitioner filed his Petition for Writ 

of Habeas Corpus in this Court. Pet. (ECF No. 2) . Petitioner 

alleges the following grounds for relief: 

Ground One: Denial of Due Process Under the 14th 

Amendment. 

Supporting Facts: Petitioner was convicted after 

testimony from a doctor who stated he diagnosed the 

victim as being a sexual abuse victim. The doctor's 

diagnosis was based solely upon his interview with the 

victim. There was no cooborating [sic] physical 

evidence, which amounted to improper vouching. 

Ground Two: Ineffective Assistance of Appellate Counsel 

For Failing to Raise Claim Stated in Ground One. 

Ground Three: Ineffective Assistance of Post-Conviction 

Counsel 6th Am. 

Supporting Facts: The U.S. Supreme Court has suggested 

that the 6th Amendment contains a right to effective 

collateral counsel in first tier post-conviction 

proceedings. Martinez v. Ryan, 132 S. CT 1309, at 

1315. [sic] . Therefore post-conviction counsel was 

ineffective for failing to assign error to appellate 

counsel's failure as alleged in Ground 2, above. 

Id. at 6-7. 

Respondent argues all relief should be denied because 

Petitioner procedurally defaulted the claims alleged in Grounds 

3 - OPINION AND ORDER 
One and Two, and Ground Three does not state a cognizable claim 

for relief. Resp't Resp. (ECF No. 23) at 7. 

In his Sur-reply, Petitioner states his "sole claim for 

relief in this proceeding is that it was ineffective for his 

appellate counsel not to raise on direct appeal the preserved, 

promising (and eventually prevailing) challenge ... to Dr. Little's 

diagnosis testimony that S.D. had been sexually abused." Pet'r's 

Sur-Reply (ECF No. 54) at 1. Although Petitioner concedes Ground 

Two is procedurally defaulted, he claims cause and prejudice 

excuse the default, or, in the alternative, that justice requires 

this Court to review the merits because he is actually innocent. 

Pet' r's Sur-Reply at 1; Pet'r's Br. in Supp. (ECF No. 40) at 24-

30. 

DISCUSSION 

As a preliminary matter, this Court finds Petitioner has 

failed to sustain his burden of demonstrating entitlement to 

relief on his un-argued Grounds One and Three. See Mayes v. 

Premo, 766 F.3d 949, 957 (9th Cir. 2014) (finding habeas 

petitioner bears the burden of proving his case). 

As for Ground Two, Petitioner argues his procedural default 

is excused under Martinez v. Ryan, 566 U.S. 1 (2012). In 

Martinez, the Supreme Court held that where the procedural 

default results from ineffective assistance of PCR counsel, a 

federal habeas court is not barred from hearing a substantial 

claim of ineffective assistance at trial .... " Id. at 17; but see, 

4 - OPINION AND ORDER 
Davila v. Davis, 137 S. Ct. 2058 (2017) (holding ineffective 

assistance of post-conviction counsel does not provide cause to 

excuse the procedural default of ineffective assistance of 

appellate counsel claims). A substantial claim is one that has 

"some merit." Martinez, 566 U.S. at 14. 

Petitioner's Ground Two does not meet the Martinez 

exception, because it is a claim of ineffective assistance of 

appellate counsel, not trial counsel. Moreover, Petitioner fails 

to demonstrate that the underlying claim (that appellate counsel 

was ineffective for failing to assign error to the trial court's 

admission of Dr. Little's diagnosis testimony) is a substantial 

one . 1 

Petitioner's alternative argument is that this Court should 

reach the merits of Ground Two because he is actually innocent. A 

colorable claim of actual innocence may serve as a gateway 

through which a petitioner may pass to overcome a procedural 

1 In a declaration submitted to the PCR court, Petitioner's 

appellate counsel explained that he did not raise this issue on 

appeal "because the prevailing case law at the time stood for the 

proposition that a diagnosis for sexual abuse by a physician was 

admissible." Resp't Ex. 121. To be sure, at the time of 

Petitioner's trial in 2007, and his appeal in 2009, Oregon law 

permitted a medical expert to testify that a child had been 

sexually abused, even in the absence of physical evidence. See 

Gresser v. Franke, 2014 WL 1155229, *7 (D. Or. Mar. 20, 2014) 

(citing State v. Wilson, 121 Or. App. 460, 462-67 (1993), aff'd, 

628 Fed. Appx. 960 (9th Cir. 2015). Soon thereafter, the Oregon 

Supreme Court held that a medical diagnosis of child sexual abuse 

was inadmissible absent corroborating physical findings. State 

v. Southard, 347 Or. 127 (2009). However, prior to Southard, a 

challenge to the trial court's admission of Dr. Little's 

diagnosis testimony would not have been successful. 

5 - OPINION AND ORDER 
default. Schlup v. Delo, 513 U.S. 298, 315 (1995). To establish a 

colorable claim of actual innocence, a petitioner must present 

"new reliable evidence-whether it be exculpatory scientific 

evidence, trustworthy eyewitness accounts, or critical physical 

evidence-that was not presented at trial." Id. at 324. The new 

evidence must be so significant that when all of the evidence is 

viewed together, it becomes more likely than not that no 

reasonable juror would have found the petitioner guilty beyond a 

reasonable doubt. McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 

(2013) . 

Here, Pe ti ti oner purports to offer "new evidence" in the 

form of two affidavits from investigators who recently contacted 

S.D. and B.C. According to one affidavit, B.C. maintains that 

Petitioner never sexually abused her, and that she believes 

Petitioner could not have molested S. D. in her bedroom without 

her hearing Petitioner enter the room. Pet' r's Ex. (ECF No. 40) 

C. The other affidavit states that when the investigator told 

S. D. that B. C. still claims Petitioner did not sexually abuse 

her, 

S.D. responded by saying, "that's too bad" and that she 

would not "back down" from her trial testimony. S. D. 

then noted that she waited through three trial 

continuances and had considered "giving up the case" 

because she did not really care whether the case went 

forward, but, when she heard B. C. was saying nothing 

happened, she felt like she had to push through for 

B.C. S.D. then explained that she (S.D.) had been 

abused by her own brother for five years and knew what 

it was like to be a victim of abuse by a family member. 

She noted that her brother had admitted to abusing her 

so she did not have to go through a trial for that 

6 - OPINION AND ORDER 
case. S.D. realized that B.C. had to live in the same 

house as her stepfather and she could not let B. C. 

continue to be molested. At the time of trial, S.D. 

stated that she felt as if someone had to speak up for 

B.C. S.D. admitted that she does not actually know what 

happened to B.C. and that she has never talked to B.C. 

about the allegations, but that she had heard that 

there was a sleepover at which B. C. told her friends 

that her stepfather had molested her. S. D. believes 

B. C. 's mother talked her into believing it did not 

happen because B.C.'s mother did not want to lose her 

husband, [Pe ti ti oner] . S. D. expressed frustration that 

B.C. was still not standing up for herself, and added 

that, due to her own experiences in life, she had, at 

one time, hoped to be a lawyer for abused children 

because she wanted to be their voice. 

Pet'r's Ex. D. 

Petitioner argues this is "new" evidence that "would have 

made a difference because [it] answers the central question the 

defense was unable to answer at trial: why would S. D. lie?" 

Pet'r's Sur-Reply at 15-16. According to Petitioner, the answer 

supplied by this affidavit is, "S. D. lied to protect her best 

friend," and to "be the advocate and voice for B. C. that she 

wished someone had been for her." Id. 

Although the jury was not told that S.D. believed Petitioner 

sexually abused B.C., they heard detailed testimony from guests 

who attended a slumber party at B. C.' s house who reported that 

B.C. tearfully told them about how Petitioner entered her room at 

night and made her uncomfortable. The jury heard that the guests 

called their mothers and left in the middle of the night, and 

that one of the mothers contacted the police. The jury heard B.C. 

testify that she told the police the guests misunderstood her, 

and that Petitioner had not sexually abused her. 

7 - OPINION AND ORDER 
The jury heard S.D. testify that while she was staying with 

B.C., Petitioner entered B.C.'s bedroom two nights in a row and 

touched her breasts and vagina while she pretended to sleep. On 

the third night, S.D. locked the bedroom door to prevent 

Petitioner from entering again. B.C. corroborated S. D.' s 

testimony regarding the door being locked. Finally, as relevant 

here, the jury heard that S.D. had been sexually abused by her 

brother from age five to age ten. Trial counsel even questioned 

S.D. about her mental health treatment for this abuse, and asked 

if it was possible she hallucinated or imagined the abuse by 

Petitioner due to her past trauma. 

Assuming, without deciding, that the substance of the 

affidavit qualifies as "new" evidence, this Court does not concur 

that it proves S.D. lied at trial, or that, more likely than not, 

no reasonable juror viewing all this evidence together would have 

convicted Petitioner. 

CONCLUSION 

Based on the foregoing, Petitioner's habeas corpus petition 

(ECF No. 2) is DENIED, and this proceeding is DISMISSED. The 

Court declines to issue a Certificate of Appealability. 

IT IS SO ORDERED. 

~ 

DATED this ']__ day of 

8 - OPINION AND ORDER 

November, 2017. 

Annbti}~ United States Senior Judge 

District of Oregon