UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

CHRISTOPHER SCOTT WIGHT, 

Petitioner, 

v. 

STEVE BROWN, 

Respondent. 

Coffin, Magistrate Judge. 

1:15-cv-01469-TC 

FINDINGS AND 

RECOMMENDATION 

Petitioner is an inmate in the custody of the Oregon 

Department of Corrections after convictions for one count of 

Rape in the First Degree and Sexual Abuse in the First Degree. 

Exhibit 101. After a jury convicted petitioner, the trial 

court imposed a sentence of 100 months of imprisonment for the 

count of Rape and a concurrent 75 month sentence for the count 

of Sexual Abuse. 

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Petitioner directly appealed his convictions, but the 

Oregon Court of Appeals affirmed without opinion and the 

Oregon Supreme Court denied review. Exhibits 106 - 111. 

Petitioner filed an Amended Petition for Post-Conviction 

Relief, Exhibit 112, but the Umatilla County Circuit Court 

denied relief, Exhibit 126) The Oregon Court of Appeals 

affirmed the PCR trial court without opinion and the Oregon 

Supreme Court denied review. Exhibit 127 - 131. 

Petitioner filed a petition for habeas corpus relief 

under 28 U.S.C. § 2254 alleging four claims of ineffective 

assistance of counsel. Petition (#1) p. 6 - 11. 

Respondent moves to deny relief on the grounds that 

petitioner's second ground for relief is procedurally 

defaulted and his first, third and fourth grounds for relief 

were denied by the Oregon post-conviction court in a decision 

that reasonably applied federal law and is entitled to 

deference. Response (#29) p. 1. 

Under 28 U.S.C. § 2254(b)(l), an application for a writ 

of habeas corpus "shall not be granted" unless "the applicant 

has exhausted the remedies available in the courts of the 

State[.]" Exhaustion occurs when a petitioner has given the 

state courts a "full and fair" opportunity to consider and 

resolve all federal claims. Keeney v. Tomayo-Reyes, 504 U.S. 

1, 10 (1992). If a petitioner can present a claim to the 

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state's Supreme Court, he must do so to properly exhaust that 

claim. O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999). 

Stated otherwise, each claim raised in a habeas petition 

must have been given one complete round of the state's 

appellate review process. 0' Sullivan v. Boerckel, supra at 

844-845, and the state courts must have had a full and fair 

opportunity to respond to any federal claim asserted by the 

petitioner. Keeney v. Tamayo-Reyes, supra at 10. 

If a petitioner has failed to present a federal 

constitutional claim to the state's highest court (i.e., has 

failed to exhaust state remedies) and can no longer do so 

because of a procedural bar, that claim is procedurally 

defaulted. Boerckel, 526 U.S. at 848, citing Coleman v. 

Thompson, 501 U.S. 722, 731-32 (1991). Once a petitioner has 

procedurally defaulted a claim, federal habeas corpus review 

is barred unless the petitioner can demonstrate: (1) cause for 

the procedural default, and ( 2) actual prejudice from the 

failure. Edwards v. Carpenter, 529 U.S. 446, 451 (2000), 

Coleman, 501 U.S. at 750;- see also, Wainwright v. Sykes, 433 

U.S. 72 (1977); Murray v. Carrier, 477 U.S. 748 (1986); Hughes 

v. Idaho Bd. of Corr., 800 F.2d 905 (9rn Cir. 1986). 

Cause for a procedural default exists only if petitioners 

"show that some objective factor external to the defense 

impeded counsel's efforts to comply with the State's 

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procedural rule." Murray, 477 U.S. at 488. Prejudice exists 

only if petitioners show that the procedural default "worked 

to [petitioner's] actual and substantial disadvantage." 

United States v. Frady, 456 U.S. 152, 170 ( 1982) . 

Demonstrating a mere possibility of prejudice is insufficient. 

Id. 

Procedural defaults may also be excused by demonstrating 

a "fundamental miscarriage of justice." Edwards v. Carpenter, 

529 U.S. 446, 451 (2000). To establish the fundamental 

miscarriage of justice exception to the exhaustion requirement 

requires a showing of actual innocence. Schlup v. Delo, 513 

U.S. 298, 329 (1995); Calderon v. Thompson, 523 U.S.538, 559 

( 1998) . 

Allegations of ineffective assistance of trial or 

appellate counsel are properly raised in post-conviction. 

State v. Lloyd, 109 Or. App. 213, 214 (1991), rev. denied 315 

Or. 268 (1992). 

In Ground Two, petitioner alleges that his trial counsel 

failed to move for a mistrial on the ground that the 

prosecutor introduced testimony that violated his right to 

remain silent. Although petitioner alleged a similar claim in 

his amended PCR petition, he did not appeal the PCR trial 

court's denial of relief on that claim and the time for doing 

so is long past. See, ORS 138.650. Therefore Ground Two is 

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procedurally defaulted. 

Plaintiff has not established any cause and prejudice for 

his procedural default or that he is entitled to the 

fundamental miscarriage of justice exception to the exhaustion 

requirement. Therefore relief on Ground Two should be denied. 

Under the Antiterrorism and Effective Death Penalty Act 

("AEDPA''), 28 U.S.C. § 2254, habeas relief may be granted only 

when a state court's decision was "contrary to, or involved an 

unreasonable application of, clearly established Federal law, 

as determined by the Supreme Court of the United States" or 

"was based on an unreasonable determination of the facts in 

light of the evidence presented at the state court 

proceedings." 28 U.S.C. § 2254(d); Wiggins v. Smith, 539 U.S. 

510, 520 (2003). 

A state court's decision is "'contrary to' federal law if 

it fails to apply the correct controlling Supreme Court 

authority or comes to a different conclusion ... [from] a case 

involving materially indistinguishable facts." Pirtle v. 

Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002) (citing Bell v. 

Cone, 535 U.S. 685, 694) The Supreme Court has held that "a 

federal habeas court making the 'unreasonable application' 

inquiry should ask whether the state court's application of 

clearly established federal law was objectively unreasonable." 

Williams v. Taylor, 529 U.S. 362, 409 (2000). 

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In addition, under 28 u.s.c. § 2254(d) (2), "a 

determination of a factual issue made by a state court shall 

be presumed to be correct. The applicant shall have the 

burden of rebutting the presumption of correctness by clear 

and convincing evidence." Miller-El v. Cockrell, 537 U.S. 322, 

351 (2003). 

"[I] t is past question that the rule set forth in 

Strickland, qualifies as 'clearly established Federal law, as 

determined by the Supreme Court of the United States. ' " 

Williams v Taylor, supra at 391. Under Williams, a petitioner 

may therefore be granted habeas corpus relief on a claim of 

ineffective assistance of counsel only if the decision of the 

state court was contrary to, or an unreasonable application of 

Strickland v. Washington, 466 U.S. 668 (1984). 

Under Strickland, a claim that counsel's assistance was 

so ineffective as to require reversal of a conviction has two 

components. First, the petitioner must show that counsel's 

performance was deficient; second, the petitioner must show 

that the deficient performance prejudiced the defense. Id. at 

687. 

The first prong of the Strickland test required the 

petitioner to demonstrate that "counsel's representation fell 

below an objective standard of reasonableness. Strickland, 

supra at 688. The second component of the test requires the 

6 - FINDINGS AND RECOMMENDATION 

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petitioner to demonstrate 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. A "reasonable probability" is one that is sufficient to 

undermine confidence in the outcome." Id. 

In Bell v. Cone, 535 U.S. 685 (2002), the Court 

reiterated that when considering ineffective assistance of 

counsel claims: 

[J]udicial scrutiny of a counsel's performance must be 

highly deferential and that every effort [must] be made 

to eliminate the distorting effects of hindsight, to 

reconstruct the circumstances of counsel's challenged 

conduct, and to evaluate the conduct from counsel's 

perspective at the time. Thus, even when a court is 

presented with an ineffective-assistance claim not 

subject to § 2254 ( d) ( 1) deference, a defendant must 

overcome the presumption that, under the circumstances, 

the challenged action might be considered sound trial 

strategy. 

Bell, 535 U.S. at 695 (citations and quotations marks omitted). 

When considering ineffective assistance of counsel claims 

under 28 U.S.C. § 2254 (d), "it is the habeas applicant's burden to 

show that the state court applied Strickland to the facts of his 

case in an objectively unreasonable manner." Woodford v. Visciotti, 

537 U.S. 19, 25 (2002) (per curiam). 

The general nature of the Strickland test combined with the 

deference prescribed by§ 2254(d) combines to require the federal 

court not to evaluate the state court's determination itself, but 

whether the state court's determination was unreasonable. Knowles 

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v. Mirzayance, 129 S.Ct. 1411, 1420 (2009) (citing Schriro v. 

Landrigan, 550 U.S. 465, 473 (2007). 

In Grounds One, Three and Four, petitioner alleges: 

Ground One: Trial counsel (failed) to impeach prosecution 

witness Jeffery Walker. 

Supporting Facts: Trial counsel called witness Clara 

Walker to impeach the testimony of alleged victim. See 

Tr. Pp 408-410. 

* * * * * 

Ground Three: Trial counsel was ineffective because he 

failed to properly object to Officer Wards vouching 

testimony. 

Supporting Facts: Officer Ward vouched for the 

credibility 

consistent 

of B when he testified that her demeanor was 

with the demeanor of someone who had 

experienced a traumatic event. 

Ground Four: An effective defense attorney would not 

introduce evidence the defendant in a sexual assault case 

had "butt-fucked" the victim. 

Supporting Facts: An attorney exercising reasonable 

professional skill and judgment would not call a witness 

to testify tht the victim in a rape case said she had 

been butt fucked by the defendant[.] At the postconviction trial counsel testified that he made a 

reasonable tactical decision to introduce this testimony 

in order to show that B had made inconsistent statements. 

However, trial counsel never made this argument to the 

jury in his losing argument. 

Petition (#1) p. 6-11. 

Petitioner alleged in his PCR petition "[t]rial counsel failed 

to impeach prosecution witness Jeffery Walker pursuant to OEC 609 

with evidence of his January 11, 1995, Theft of Property 

conviction." Exhibit 112, p. 5. The PCR court rejected that 

claim, finding "[c]ounsel did not err in choosing not to use an 

old, minor conviction against witness Walker ... Walker was not an 

8 - FINDINGS AND RECOMMENDATION 

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important witness." Exhibit 12 6, p. 2. The PCR court further 

found that given the age of the conviction, "counsel [was] correct 

in assuming that it would make no real difference." Exhibit 125, 

p. 18. 

The PCR court's decision to deny relief on this claim was not 

an unreasonable application of the Strickland standard for 

ineffective assistance of counsel. Walker was not a key witness 

and impeaching him with a 13 year old theft conviction would not 

have made any difference in the case or affected the outcome - in 

view of the victim's testimony and the substantial physical 

evidence against petitioner. 

Petitioner alleges in Ground Three that his trial counsel was 

ineffective because he failed to properly object to Officer Ward's 

"vouching" testimony. 

Petitioner raised a claim similar to that alleged in Ground 

Three in his PCR proceeding. 

The testimony at issues is as follows: 

[Prosecutor}: Okay. And have you had the experience of 

seeing rape victims in other cases? 

[Sergeant Ward]: Yes, I have. 

[Prosecutor]: And the demeanor that you describe the 

victim having, would that, based on your training and 

experience, be consistent with hat of a -

[Trail counsel] : Your honor, I'm going to object. I 

don't think he has the ability to make that kind of a 

diagnosis in this situation as a - as an officer, 

therefore I'm going to object to the question. 

9 - FINDINGS AND RECOMMENDATION 

Case 1:15-cv-01469-TC Document 37 Filed 10/12/16 Page 9 of 14
[The Court]: Overruled. 

[Prosecutor]: Was her demeanor consistent with that of 

someone who'd been through a sexual assault? 

[Sergeant Ward]: Yes. 

traumatic situation. 

Exhibit 104, p 210-211. 

It was consistent with a 

The PCR court rejected petitioner's claim that trial counsel 

performance was ineffective with respect to his objection to 

Sergeant Ward's alleged "vouching" testimony, finding as follows: 

Trial counsel committed no error about the testimony of 

Officer Ward. He properly objected [and] was overruled. That 

preserved the issue for appeal. Besides, Ward's testimony 

about the victim's emotional state was relevant [and] 

appropriate about whether she had been raped. 

Exhibit 126, p. 1-2. 

Under Oregon law, as a general matter, "a witmess, expert or 

otherwise, may not give an opinion on whether he believes a witness 

is telling the truth," State v. Middleton, 2 94 Or. 4 2 7 ( 198 3) . 

However, Oregon courts have drawn a distinction between opinions on 

a particular witness's veracity and opinions on "how the conduct of 

a witness compares with similarly situated members of an 

identifiable group." State v. Munro, 68 Or. App. 63, 66 (1984). 

A witness may testify "as to whether the particular complainant's 

conduct was consistent with [a] general phenomenon," but may not 

"explicitly state whether he or she believed that the 

complainant/witness was telling the truth." State v. Remme, 173 Or. 

App. 546, 558 (2001). 

10 - FINDINGS AND RECOMMENDATION 

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In this case, Officer Ward did not testify that he believed 

the victim ["M.B."] was telling the truth. Instead he testified 

that M.B.'s demeanor "was consistent with a traumatic situation," 

which is perfectly proper under Middleton and its progeny. 

Therefore, the PCR court correctly concluded that Officer 

Ward's testimony was not inadmissible vouching and that trial 

counsel was not ineffective for failing to object. 

In any event, petitioner cannot demonstrate prejudice. The 

evidence against petitioner was overwhelming. The DNA evidence 

contradicted petitioner's initial claim that there was no sexual 

contact, and his claim that his DNA was deposited on M.B.'s back 

because she interrupted him masturbating was not credible. 

Petitioner cannot establish that there is a reasonable probability 

that, had officer Ward's testimony been excluded, the result of his 

trial would have been different. 

In Ground Four, petitioner alleges that trial counsel was 

ineffective when he elicited testimony from defense witness Clara 

Walker that M.B. had claimed she was "butt-fucked" by petitioner. 

Petitioner raised a claim similar to that alleged in Ground Four in 

his PCR petition. The PCR court rejected that claim finding as 

follows: 

The outcome of the testimony of Clara Walker did not 

obviously aid Petitioner, but neither did it clearly hurt 

him. Even if it was an error to call her, like the other 

claims, there was so much other, damning evidence that 

the alleged error did not materially effect (sic) the 

outcome of the case. Chief among such evidence was the 

11 - FINDINGS AND RECOMMENDATION 

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Petitioner's adamant denial to Ward of any sexual contact 

juxtaposed with his contrived, bizarre trial testimony 

about how his semen ended up on her back. 

Exhibit 126, p. 2. 

Petitioner's trial counsel explained in an affidavit submitted 

to the PCR court that he made a tactical decision to elicit Clara 

Walker's testimony that M.B. made inconsistent statements about 

the rape. Exhibit 122, p. 2. 

"Strategic choices made after a through investigation of the 

law and facts relevant to plausible options are virtually 

unchallengable." Strickland, 466 U.S. at 690. Trail counsel's 

strategic decision to demonstrate M.B.'s inconsistent statements 

was reasonable. 

Moreover, as discussed above, M. B. 's testimony was 

corroborated by DNA evidence, photos of bruises on her legs and 

torso, a photo of a scratch on petitioner's chest, and the 

testimony of several other witnesses. In light of the substantial 

evidence against petitioner, the PCR court's conclusion that Clara 

Walker's testimony did not materially affect the outcome of 

petitioner's trial was reasonable and entitled to deference under 

28 u.s.c. § 2254(d) (1) 

Based on all of the foregoing, I find that petitioner has 

failed to demonstrate his trial counsel was deficient in any way or 

that he was prejudiced by his counsel's performance. 

Petitioner's Petition (#1) should be denied. The Clerk of the 

12 - FINDINGS AND RECOMMENDATION 

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Court should be directed to enter a judgment dismissing this 

proceeding 

This recommendation is not an order that is immediately 

appealable to the Ninth Circuit Court of Appeals. Any notice of 

appeal pursuant to Rule 4(a) (1), Federal Rules of Appellate 

Procedure, should not be filed until entry of the district court's 

judgment or appealable order. The parties shall have fourteen (14) 

days from the date of service of a copy of this recommendation 

within which to file specific written objections with the court. 

Thereafter, the parties have fourteen (14) days within which to 

file a response to the objections. Failure to timely file 

objections to any factual determinations of the Magistrate Judge 

will be considered a waiver of a party's right to de novo 

consideration of the factual issues and will constitute a waiver of 

a party's right to appellate review of the findings of fact in an 

order or judgment entered pursuant to the Magistrate Judge's 

recommendation. 

Ill/I 

//Ill 

Ill/I 

Ill// 

Ill/I 

13 - FINDINGS AND RECOMMENDATION 

Case 1:15-cv-01469-TC Document 37 Filed 10/12/16 Page 13 of 14
Certificate of Appea1abi1ity 

Shoul.d petitioner appeal., a certificate 0£ appea1.abi1.ity 

shoul.d be denied as petitioner has not made a substantial. showing 

0£ the denial. 0£ a constitutiona.l right. See, 28 U.S.C. § 

2253 (c) (2). 

DATED this [J...~ay 2016. 

Judge 

14 - FINDINGS AND RECOMMENDATION 

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