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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

JAMES TODD GULLEY, 

Case No. 6:15-cv-01693-HZ 

Petitioner, 

OPINION AND ORDER 

v. 

JEFF PREMO, 

Respondent. 

Anthony D. Bornstein 

Assistant Federal Public Def ender 

101 S.W. Main Street, Suite 1700 

Portland, Oregon 97204 

Attorney for Petitioner 

Ellen F. Rosenblum, Attorney General 

Kristen E. Boyd, Assistant Attorney General 

Department of Justice 

1162 Court Street NE 

Salem, Oregon 97310 

Attorneys for Respondent 

1 - OPINION AND ORDER 

Case 6:15-cv-01693-HZ Document 33 Filed 01/27/17 Page 1 of 16
HERNANDEZ, District Judge. 

Petitioner brings this habeas corpus case pursuant to 28 

U.S.C. § 2254 challenging the legality of his state-court sexual 

abuse convictions from 2009. For the reasons that follow, the 

Petition for Writ of Habeas Corpus (#2) should be denied. 

BACKGROUND 

Petitioner sexually abused his 

approximately between the years of 

two daughters, JG and SG, 

1995 and 2004. Sometime 

between 1996 and 1999, when JG and SG were still under the age of 

13, they informed their mother, Annette, about the abuse. 

Annette did not report the abuse to authorities, but instead 

participated in a family meeting where she, petitioner, and their 

daughters agreed that they would not report the abuse to 

authorities. Annette's parents also dissuaded the girls from 

reporting the abuse. 

Petitioner stopped abusing SG, but continued to abuse JG 

until she attempted to commit suicide in 2003 at the age of 15. 

In 2009, at the age of 20, JG had become estranged from her 

family and decided to report the abuse. On May 22, 2009, she 

disclosed the abuse to Officer Grady Nelson of the Hubbard Police 

Department. Officer Nelson asked JG to make a recorded phone call 

to petitioner wherein he admitted abusing both JG and SG. 

Officer Nelson also interviewed SG who, although reluctant to 

speak out against petitioner, advised Nelson that petitioner had 

sexually abused her. Respondent's Exhibit 116, p. 17. SG also 

disclosed the abuse to an investigator for the Marion County 

District Attorney's Off ice, telling her that petitioner began 

2 - OPINION AND ORDER 

Case 6:15-cv-01693-HZ Document 33 Filed 01/27/17 Page 2 of 16
abusing her when she was six or 

Exhibit 118, p. 2. She did not, 

prosecuted. 

seven years old. Respondent's 

however, wish to see her father 

The Marion County Grand Jury charged petitioner with seven 

counts of Sexual Abuse in the First Degree and Two Counts of 

Sodomy in the First Degree. Respondent's Exhibit 103. On 

October 1, 2009, the State notified petitioner and the trial 

court of its intention to rely on enhancement facts and to seek 

consecutive sentences. Respondent's Exhibit 115. 

Petitioner participated in a psychosexual evaluation wherein 

he admitted to sexually abusing SG and JG for a period of years 

ending no later than 2001. Respondent's Exhibit 122, p. 4. He 

claimed that he abused the girls on a weekly basis. Id at 3. He 

also stated that he may have abused two other minor girls who 

were not the subject of the Indictment. Id at 4. 

The parties entered into plea negotiations culminating in 

petitioner's January 3, 2010 plea petition wherein he admitted 

abusing JG and SG between 1996 and 1999, and agreed to: (1) plead 

guilty to five counts of Sexual Abuse in the First Degree; and 

( 2) serve a minimum sentence of 100 months while acknowledging 

that the State would make a 300-month sentencing recommendation. 

Respondent's Exhibit 104. Petitioner entered his guilty pleas, 

and the trial court imposed a 225-month sentence. 

Exhibit 105, pp. 34-35. 

Respondent's 

Petitioner did not take a direct appeal, and instead 

proceeded to file for post-conviction relief ( "PCR") in Marion 

County where he asserted that trial counsel had been ineffective 

3 - OPINION AND ORDER 

Case 6:15-cv-01693-HZ Document 33 Filed 01/27/17 Page 3 of 16
for failing to adequately explain the possibility of a statute of 

limitations defense resulting in a guilty plea that was not 

knowing and voluntary. Respondent's Exhibit 107. The PCR court 

denied relief finding, in part, that petitioner had not 

established prejudice. Respondent's Exhibit 126. Petitioner 

appealed that decision, and the State moved for summary 

affirmance on the basis that petitioner failed to challenge the 

PCR court's finding of no prejudice, and alternatively argued 

that any challenge to the prejudice determination would not have 

succeeded. The Oregon Court of Appeals granted the State's 

motion for summary affirmance because petitioner did not assign 

error to the PCR court's findings regarding prejudice, or 

otherwise argue that the findings were not supported by evidence 

in the record. Respondent's Exhibit 130. The Oregon Court of 

Appeals denied petitioner's subsequent motion for 

reconsideration, and the Oregon Supreme Court denied review. 

Respondent's Exhibits 132, 134. 

Petitioner filed this federal habeas corpus action on 

September 4, 2015. In his Petition, petitioner raises the 

following grounds for relief: 

1. The trial court violated petitioner's 

right to due process by accepting a plea that 

was not knowing, intelligent, and voluntary, 

thereby resulting in an invalid conviction; 

and 

2. Trial counsel was constitutionally 

ineffective when he: (a) erroneously advised 

petitioner to accept the State's plea offer; 

(b) failed to adequately and accurately 

explain the possibility of a statute of 

limitations defense; (c) failed to ensure 

4 - OPINION AND ORDER 

Case 6:15-cv-01693-HZ Document 33 Filed 01/27/17 Page 4 of 16
that petitioner's plea was voluntary; and 

(d) erroneously represented to the court that 

the plea was voluntary. 

Petition for Writ of Habeas Corpus (#2), Exhibit B. 

Respondent as ks the court to deny relief on the Pe ti ti on 

because petitioner failed to fairly present all of his claims to 

Oregon's state courts, and if petitioner fairly presented Ground 

2 (b), the state-court decisions denying relief are correct and 

entitled to deference. 

DISCUSSION 

I. Exhaustion and Procedural Default 

A petitioner seeking habeas relief must exhaust his claims 

by fairly presenting them to the state's highest court, either 

through a direct appeal or collateral proceedings, before a 

federal court will consider the merits of habeas corpus claims 

pursuant to 28 U.S.C. § 2254. Rose v. Lundy, 455 U.S. 509, 519 

( 1982) . A petitioner must also present his claims in a 

procedural context in which its merits can be considered. 

Castille v. Peoples, 489 U.S. 346, 351 (1989). A petitioner is 

deemed to have "procedurally defaulted" his claim if he failed to 

comply with a state procedural rule, or failed to raise the claim 

at the state level at all. Edwards v. Carpenter, 529 U.S. 446, 

451 (2000); Coleman v. Thompson, 501 U.S. 722, 750 (1991). 

In this case, it is clear from petitioner's state-court 

proceedings that he did not fairly present his Ground One due 

process claim to Oregon's state courts. Specifically, in his 

Appellant's Brief, petitioner asserted only that his attorney was 

ineffective for advising him that no statute of limitations 

5 - OPINION AND ORDER 

Case 6:15-cv-01693-HZ Document 33 Filed 01/27/17 Page 5 of 16
argument was possible, resulting in an involuntary guilty plea. 

Respondent's Exhibit 127, p. 6. He limited his Petition for 

Review in the Oregon Supreme Court to the same claim. 

Respondent's Exhibit 133. Accordingly, the due process claim in 

Ground One is procedurally defaulted, and petitioner makes no 

argument to excuse the default. 

With respect to Ground Two, respondent asserts that when the 

Oregon Court of Appeals granted summary aff irmance based upon 

petitioner's failure to challenge the prejudice findings of the 

PCR court, it denied relief on a state law ground that is 

independent of the federal question and adequate to support the 

judgment. Because petitioner's Ground Two claims lack merit, 

the court need not resolve the issues of fair presentation and 

procedural default. See 28 U.S.C. § 2254(b) (2) ("An application 

for a writ of habeas corpus may be denied on the merits, 

notwithstanding the failure of the applicant to exhaust the 

remedies available in the courts of the state."). 

II. The Merits 

A. Standard of Review 

An application for a writ of habeas corpus shall not be 

granted unless adjudication of the claim in state court resulted 

in a decision that was: (1) "contrary to, or involved an 

unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States;" or ( 2) 

"based on an unreasonable determination of the facts in light of 

the evidence presented in the State court proceeding." 28 U.S.C. 

§ 2254(d). A state court's findings of fact are presumed 

6 - OPINION AND ORDER 

Case 6:15-cv-01693-HZ Document 33 Filed 01/27/17 Page 6 of 16
correct, and petitioner bears the burden of rebutting the 

presumption of correctness by clear and convincing evidence. 28 

U.S.C. § 2254 (e) (1). 

A state court decision is "contrary to clearly 

established precedent if the state court applies a rule that 

contradicts the governing law set forth in [the Supreme Court's] 

cases" or "if the state court confronts a set of facts that are 

materially indistinguishable from a decision of [the Supreme] 

Court and nevertheless arrives at a result different from [that] 

precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). 

Under the "unreasonable application" clause, a federal habeas 

court may grant relief "if the state court identifies the correct 

governing legal principle from [the Supreme Court's] decisions 

but unreasonably applies that principle to the facts of the 

prisoner's case." Id at 413. The "unreasonable application" 

clause requires the state court decision to be more than 

incorrect or erroneous. Id at 410. Twenty-eight U.S.C. 

§ 2254 (d) "preserves authority to issue the writ in cases where 

there is no possibility f airminded jurists could disagree that 

the state court's decision conflicts with [the Supreme] Court's 

precedents. It goes no farther." Harrington v. Richter, 562 

U.S. 86, 102 (2011). 

B. Analysis 

According to petitioner, he had a viable statute of 

limitations defense, and trial counsel failed to properly advise 

him as to that defense such that his resulting plea was not 

knowing and voluntary. Because no Supreme Court precedent is 

7 - OPINION AND ORDER 

Case 6:15-cv-01693-HZ Document 33 Filed 01/27/17 Page 7 of 16
directly on point that corresponds to the facts of this case, the 

court uses the general two-part test established by the Supreme 

Court to determine whether petitioner received ineffective 

assistance of counsel. Knowles v. Mirzayance, 556 U.S. 111, 122-

23 (2009). First, petitioner must show that his counsel's 

performance fell below an objective standard of reasonableness. 

Strickland v. Washington, 466 U.S. 668, 686-87 (1984). Due to 

the difficulties in evaluating counsel's performance, courts must 

indulge a strong presumption that the conduct falls within the 

"wide range of reasonable professional assistance." Id at 689. 

Second, petitioner must show that his counsel's performance 

prejudiced the defense. The appropriate test for prejudice is 

whether the petitioner can show "that there is a reasonable 

probability that, but for counsel's unprofessional errors, the 

result of the proceeding would have been different." Id at 694. 

In proving prejudice, a petitioner who has pled guilty or no 

contest to an offense must demonstrate that there is a reasonable 

probability that, but for counsel's errors, he would not have 

entered such a plea and would have insisted on going to trial. 

Hill v. Lockhart, 474 U.S. 52, 59 (1985) When Strickland's 

general standard is combined with the standard of review 

governing 28 U.S.C. § 2254 habeas corpus cases, the result is a 

"doubly deferential judicial review." Mirzayance, 5 5 6 U.S. at 

122. 

The statute of limitations for sex offenses is 12 years from 

the earlier of either the victim's 18th birthday or the date the 

crimes are reported to a law enforcement agency of the Department 

8 - OPINION ANO ORDER 

Case 6:15-cv-01693-HZ Document 33 Filed 01/27/17 Page 8 of 16
of Human Services ("OHS"). ORS 131.125. However, until January 

1, 2006, the statute of limitations was only six years. 2005 Or. 

Laws Ch. 8 39. As a result, if the six-year statute of 

limitations began to run before January 1, 2000, then it expired 

prior to the time the law changed. 

In his PCR proceeding, petitioner alleged that his trial 

attorney advised him that he had no statute of limitations 

defense. Specifically, he argued that his wife, Annette, worked 

for the Oregon Youth Authority at the time the victims made their 

disclosure of sexual abuse to her, and that such employees had an 

obligation to report child abuse. See ORS 4198.010 and ORS 

4198.050. He claimed that the girls told their mother about the 

sexual abuse in the summer of 1999, thus the six-year statute of 

limitations had already expired at the time of his indictment in 

2009. 

Trial counsel submitted an Affidavit for the PCR court's 

consideration wherein he explained that he was "intimately aware 

of the several revisions that have been made to the statute of 

limitations in sexual offenses since 1989." Respondent's Exhibit 

114, p. 1. With respect to petitioner's case, he stated: 

Before Gulley accepted the plea deal, we 

discussed potential defenses that he had to 

the charges, including a potential statute of 

limitations defense. I discussed each 

potential defense with Gulley. With regard 

to the statute of limitations defense, I 

explained both the six-year and twelve-year 

statutes of limitations, and how the statute 

of limitations had changed over time. I 

shared with Gulley my professional opinion 

that the six-year statute of limitations did 

not apply to his case. I never believed 

9 - OPINION AND ORDER 

Case 6:15-cv-01693-HZ Document 33 Filed 01/27/17 Page 9 of 16
Id at 2-3. 

that the girls' report to their mother, 

Annette Gulley, constituted a report to a 

governmental agency that triggered the six 

year statute of limitations. Even it if did, 

the indictment alleged time frames of 

incidences beyond this date. Additionally, 

[JG] claimed in her May 22, 2009 initial 

disclosure to the police, and her follow-up 

interview on May 2 4, 2 00 9, that the abuse 

continued until she tried to commit suicide 

on December 1, 2003. These incidences were 

never reported to her mother or any other law 

enforcement agency or conceivable 

governmental agency or OHS. Granted, the 

alleged touches of [JG] after the disclosure 

to mom were over clothes, howev€r, these 

touches, under the circumstances, constitute 

Sexual Abuse in the First Degree, in my 

opinion, (at least up until [JG]' s fourteenth 

birthdate . .) under Oregon law. 

I ultimately concluded that Gulley had no 

valid statute of limitations defense to the 

charges, and I told him as much. I also told 

him there was no motion to dismiss that we 

could file on the basis of the statute of 

limitations. Gulley understood that by 

taking the plea deal, he would waive his 

right to any defenses to the charges. 

The PCR court held an evidentiary hearing in the case, and 

ultimately resolved the issue as follows: 

The sole issue in this case is whether 

petitioner's plea was knowing and voluntary 

in that [his] attorney could have litigated a 

statute of limitations motion which could 

have resulted in some of the charges being 

dismissed. 

This court believes that the attorney fully 

discussed the motion with pet and that pet 

accepted the advi [ c] e that the motion would 

not leave pet in any better place than the 

plea and the plea carried less risk than 

trial. This was a reasonable strategy 

10 - OPINION AND ORDER 

Case 6:15-cv-01693-HZ Document 33 Filed 01/27/17 Page 10 of 16
decision based on the risk of litigati [ng] 

the motion and proceeding to trial. 

The motion was not as clear cut as pet 

argues. The weaknesses of the motion are the 

following: 

1. Both girls reported the abuse to their 

mother in 1996-1999. Mother never disclosed 

to the police. Mother began working for OYA 

in 1997, so was a mandatory reporte[r] after 

that time. If the girls told her any time 

prior to her employment, it would not trigger 

the statute of limitations. 

2. Clearly the legislature did not intend 

that a parent who was a mandatory reporter 

could decide not to report and thereby start 

the time limit rolling. A court could well 

have found that the girls reported to their 

MOTHER, not a neutral party and mother 

responded as a wife, not in any official 

capacity. She conspired with pet to hide the 

crimes. 

3. The report to mother by S was of pet 

touching "inappropriate places". J reported 

touching of her vagina and breasts. Children 

did not disclose any other details of what 

places [petitioner] touched and didn't 

disclose that it happened to each of them 

many times. A court could easily find that 

the reports were too general and that there 

were many more incidents than indicted. 

There was never any mention of oral sex until 

2009. 

4. s. 

6-10 or 

unclear if touched when she was age 

8-12. 

5. J would testify 

after the disclosure, 

motion. 

that she was abused 

so not subject to the 

6. In a motion that is based on dates, all 

of the dates are uncertain. 

7. Law in this area changed several times 

during period of charges and lack of 

specificity by girls leaves the argument of 

11 - OPINION AND ORDER 

Case 6:15-cv-01693-HZ Document 33 Filed 01/27/17 Page 11 of 16
which law applied at various times and that 

the statute did not run. 

Trial on this case would have been risky. 

8. If pet won the motion entirely, he was 

still facing two Sodomy 1 counts, which would 

easily have gotten him 200 months if 

convicted. The DA would have asked for 

departures. The plea got him 225. Trial 

attorney would have been rightly concerned 

about keeping out testimony about the years 

of abuse of both girls which pet had 

admitted, testimony that the sodomy charges 

came to light after this child attempted 

suicide, that the child had reported years 

earlier to her mother but been ignored and 

placed back in the home with the pet and 

pressured by her extended family not to tell. 

Defending on the failure to report would 

therefore have been problematic. Having pet 

testify would have been dangerous for many of 

the same reasons. Character witnesses would 

have been asked if they knew of pet's 

admissions to abusing both girls. 

9. If pet lost the motion on any of the 

counts, he stood to lose at trial. S didn't 

want him convicted and had forgiven him, but 

she had clearly reported years of abuse. If 

convicted of any counts concerning S, 

consecutive sentences were a real risk since 

there were two victims. 

10. Pet made admissions and there was a 

taped pretext call. 

11. Attorney would have been reluctant to 

call Mother. She would have gotten little 

sympathy from a jury and she clearly believed 

the reports but wanted it handled inside the 

family. 

12. The DA had already filed notice of 

enhancement factors. 

This court finds the plea was knowing and 

voluntary and that the attorney recognized 

the statute of limitations issue [], and 

advised pet on the risks of plea versus 

12 - OPINION AND ORDER 

Case 6:15-cv-01693-HZ Document 33 Filed 01/27/17 Page 12 of 16
trial. Pet knew he was waiving that motion 

if he pled guilty and he decided to take a 

known sentence instead of the risk. 

Attorney's advice was reasonable under the 

circumstances. This court finds no inadequacy 

in the representation and no prejudice in any 

respect pled. 

Respondent's Exhibit 126, pp. 4-5. 

As in his PCR proceeding, petitioner argues here that the 

girls' disclosure to Annette triggered the statute of limitations 

because, as an employee of the Oregon Youth Authority, she was a 

mandatory reporter of sexual abuse. He therefore reasons that 

the statute of limitations defense was viable as to all charges 

as to SG, and half of the charges pertaining to JG, such that any 

success on statute of limitations grounds would have 

substantially altered his prospects at trial. 

JG and SG disclosed the sexual abuse to Annette at home, in 

a bathroom with the door locked, as their father was trying to 

get in. Respondent's Exhibit 116, p. 9. Al though petitioner 

denied abusing the girls in the immediate aftermath of the girls' 

disclosure, Annette and petitioner ultimately acknowledged the 

abuse but pressured SG and JG to maintain its secrecy within the 

family so as to avoid any legal consequences for petitioner. 

Although a disclosure of child abuse to a person with a duty to 

report such abuse typically triggers the statute of limitations, 

State v. Walker, 192 Or. App. 535 (2004), the unique facts 

underlying the disclosure in this case cast significant doubt 

upon petitioner's characterization of the disclosure as a report 

of abuse to a duty-bound governmental employee. As the PCR court 

found, it is difficult to see how the statute of limitations 

13 - OPINION AND ORDER 

Case 6:15-cv-01693-HZ Document 33 Filed 01/27/17 Page 13 of 16
would be triggered by a young child telling her mother of sexual 

abuse, only to have the statute of limitations expire because the 

mother helped her husband shield the abuse from disclosure 

outside of the family. In this regard, counsel's performance did 

not fall below an objective standard of reasonableness when he 

advised petitioner that the statute of limitations argument was 

not likely to succeed. 

Not only was petitioner unlikely to succeed on the statute 

of limitations defense given the unique facts of this case, but 

even assuming he had prevailed, the statute of limitations 

argument would not have affected the two Sodomy I charges in the 

indictment because they came to light well after the victims' 

initial disclosure to Annette. As the PCR court noted, these two 

charges would have easily netted petitioner a 200-month sentence. 

The State also might have elected to bring additional charges 

with respect to any offense that the girls had not specifically 

reported to Annette. See State v. Hutchinson, 176 Or. App. 363, 

368 (2001) . 1 Given the substantial evidence petitioner faced, he 

cannot demonstrate that but for any erroneous advice on the 

statute of limitations issue, he would have foregone the plea 

of fer and insisted on proceeding to trial. For all of these 

reasons, the PCR court's well-reasoned decision was neither 

contrary to, nor an unreasonable application Of I clearly 

established federal law. 

Ill 

1 It is worth noting that had petitioner proceeded to trial under statute of 

limitations theory and lost on such a motion, he risked receiving a prison 

sentence of more than 700 months. 

14 - OPINION AND ORDER 

Case 6:15-cv-01693-HZ Document 33 Filed 01/27/17 Page 14 of 16
III. Evidentiary Hearing 

Finally, petitioner makes an alternative request for an 

evidentiary hearing to allow him to rebut the PCR court's finding 

that Annette conspired with petitioner to hide the abuse. 

Petitioner is not entitled to an evidentiary hearing in federal 

court unless he diligently attempted to develop his evidence in 

state court, but was unable to do so. Williams v. Taylor, 529 

U.S. 420, 433-438, (2000). If petitioner failed to diligently 

develop the evidence in state court, an evidentiary hearing is 

permitted only if petitioner's claim relies on: 1) a new rule of 

constitutional law, made retroactive to cases on collateral 

review by the Supreme Court, that was previously unavailable; or 

2) a factual predicate that could not have been previously 

discovered through the exercise of due diligence. 28 U.S. C. 

§ 2254 (e) (2) (A) (i) and (ii). In addition, the facts underlying 

the claim must be sufficient to establish by clear and convincing 

evidence, that no reasonable factfinder would have found the 

petitioner guilty of the underlying offense. 

(e) (2) (B). 

28 u.s.c. § 2254 

Petitioner reasons that he is not at fault for failing to 

introduce evidence during his PCR hearing on the conspiracy 

between Annette and himself because the PCR court issued that 

finding only after his PCR evidentiary hearing. It is clear from 

the record that Annette's failure to disclose the abuse to 

authorities was evident years 

indicted. Petitioner, Annette, 

SG and JG to keep the abuse a 

15 - OPINION AND ORDER 

before petitioner was even 

and Annette's parents pressured 

secret, and this was a central 

Case 6:15-cv-01693-HZ Document 33 Filed 01/27/17 Page 15 of 16
issue to the statute of limitations defense he discussed with 

trial counsel. Petitioner therefore cannot claim that he had no 

opportunity to demonstrate that Annette was not part of any 

conspiracy to hide the abusive behavior. Accordingly, an 

evidentiary hearing is not appropriate. 

CONCLUSION 

For the reasons identified above, petitioner's request for 

an evidentiary hearing and his Petition for Writ of Habeas Corpus 

(#2) are denied. The court declines to issue a Certificate of 

Appealability on the basis that petitioner has not made a 

substantial showing of the denial of a constitutional right 

pursuant to 28 U.S.C. § 2253 (c) (2). 

IT IS SO ORDERED. 

DATED this )1 day of January, 2017. 

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