UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON

SCOTT DAVID BOWEN,

Petitioner,

v. 

MARK NOOTH, Superintendent, Snake

River Correctional Institution,

Respondent.

Case No. 2:13-cv-00748 -KI

OPINION AND ORDER

C. Renee Manes

Assistant Federal Public Defender

101 S.W. Main Street, Suite 1700

Portland, OR 97204

Attorney for Petitioner

Frederick M. Boss

Deputy Attorney General

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Samuel A. Kubernick

Assistant Attorney General

Department of Justice

1162 Court Street NE

Salem, OR 97301-4096

Attorneys for Respondent

KING, Judge:

Petitioner Scott David Bowen, an inmate in the custody of the Oregon Department of

Corrections, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the reasons

set forth below, I deny the petition and dismiss this proceeding with prejudice.

PROCEDURAL BACKGROUND

In 2005, a jury convicted Bowen of five counts of first-degree sexual abuse, two counts of

first-degree sodomy, and one count of first-degree rape as a result of Bowen’s abuse of his minor

step-daughter between 1991 and 2002. Ten jurors1 voted to convict and two found him not guilty

of all the charges. The trial court sentenced Bowen to 200 months’ imprisonment.

T.H., Bowen’s step-daughter who was 18 years old at the time of trial, testified that

during the time she was six to eight years old, Bowen sexually abused her by touching her,

asking her to touch him, and putting his penis in her mouth. She gave detailed testimony. 

Bowen called it playing make-you-feel-good. She testified that around the time she was eight,

her mother found her crying in her bed. They began talking and her mother asked T.H. if Bowen

had been touching her. When T.H. said yes, her mother took her to the living room to confront

1

In Oregon, only ten jurors need be unanimous to reach a verdict. ORS 136.450; 

Or. Const., Art. I, § 11.

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Bowen. T.H. testified that after this event, her mother started staying home. T.H. did not testify

to any touching between the ages of 9 and 15.

T.H. also testified to drinking alcohol before the family moved in the summer prior to

seventh grade. Toward the end of eighth grade, she began experimenting with methamphetamine

she found in a toolbox in the basement of the family’s home. She stopped going to school, began

using drugs all of the time, and hung out with people who engaged in criminal activity. She

became sexually active. She came home every few weeks and only stayed there for a day or two. 

At some point, she was reported as a runaway. 

During one of the times T.H. was home, when she was about 15 years old, she was down

in the basement with Bowen. Bowen asked her if she would “take a line” if he offered it to her. 

Resp’t Ex. 104, Tr. Vol. 2, at 158. She agreed and snorted a line of methamphetamine. 

Pornography was on the television and they each began to masturbate. Bowen put his penis in

T.H.’s mouth.

One other time when she was down in the basement doing laundry or getting a cigarette

or smoking marijuana–she was not certain–Bowen took methamphetamine out of his toolbox and

offered T.H. a line. Pornography was again playing on the television. T.H. sat on Bowen facing

him and Bowen put his penis in her vagina. 

At some point, T.H.’s parents told T.H. to move out. On cross-examination, T.H. agreed

the last conversation she had with her parents consisted of an argument about her bringing boys

into the house. T.H. told Bowen and her mother, “I will lay with whoever I want.” Resp’t Ex.

105, Tr. Vol. 3, at 179. Bowen told her not in his house. T.H. responded, “We’ll see how long

this is your house.” Id. On December 4, 2002, police found T.H. when they served a warrant on

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a resident of a house where T.H. had been staying. Because T.H. had been reported as a

runaway, police dropped her back at her parent’s house. When she realized where she was going,

she told police she was not any safer at her parents’ house than anywhere else. 

At the time of her testimony, T.H. had been clean and sober for a year and a half. 

The state also called T.H.’s childhood friend, who testified that when she was about

seven years old T.H. confided that Bowen had touched her vagina.

T.H.’s mother, Anna Bowen, testified that she, T.H. and another childhood friend of

T.H.’s had a conversation about Bowen sexually touching T.H. She and T.H. then confronted

Bowen. As a result of that conversation, Anna Bowen quit her job so she could stay home. 

Dr. Arlene Ritzen, a pediatrician at CARES Northwest,2 testified to her findings about

T.H. based upon interviews and a physical examination that took place on February 5 and 12,

2003. Her testimony is the sole subject of Bowen’s habeas petition. Dr. Ritzen’s physical

examination of T.H. revealed scars from intravenous drug use. There was a partial separation in

T.H.’s hymen which could have been evidence of a penetrating trauma. Dr. Ritzen conceded,

however, that the partial separation could also have been the result of T.H.’s consensual sexual

activity. The prosecutor then asked Dr. Ritzen:

Q: Okay. Dr. Ritzen, based upon your medical evaluation of [T.H.] as well as the

interviews, did you reach a diagnosis with a degree of medical certainty?

A: Yes.

Q: And what is that diagnosis?

A: I made a diagnosis of sexual abuse.

2A clinic designed to diagnose and treat child abuse.

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Q: And what is that based on?

A: The physical examination and our talking time and history gathering of [T.H.].

Q: And can you give us an outline of those findings during the evaluation –or I’m

sorry, the interview that you relied upon.

A: Well, first of all, I –for making my diagnosis, I always keep the two together,

the physical examination and in that where we also talked about why she was

there today – at that evaluation so I never separate the physical examination and

the talking time. And – but during her – the history gathering, the interview, she

talked about sexual abuse.

Q: And during your interview with her – during the interview with her--

A: Uh-huh.

Q: – is it important for you to reach your diagnosis to listen for who the

perpetrator of the sexual abuse is?

A: Yes.

Q: And did you reach a conclusion as to that fact?

A: Yes.

Q: And who was that?

A: [T.H.]’s stepfather, Scott Bowen.

Q: And did you make treatment recommendations for this child?

A: Yes.

Q: And what were they?

A: The first treatment recommendation is that she have no further contact with

Scott Bowen based on what she – her physical examination and what she talked

about with us today – at that time and that she enter into individual therapy.

MR. HAMALIAN: I object as to relevance, Your Honor.

THE COURT: Overruled.

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Resp’t Ex. 105, Tr. Vol. 3, at 282-84. 

Dr. Ritzen conceded on cross-examination that T.H. revealed she had been sexually

active in a consensual manner with other people and that the doctor’s physical examination

findings could be consistent with T.H.’s normal, active sex life.3

 The doctor found no other

evidence of sexual abuse in her physical examination of T.H. Bowen’s counsel elicited a

concession from Dr. Ritzen that her report focused solely on Bowen and did not address any

other sex partners, including the age of any other partner or the legality of any other sexual 

interactions. 

After Dr. Ritzen testified, Bowen’s attorney called his investigator who testified about

Anna Bowen’s report that T.H. “would tell me that I was stupid and that people would believe

her before they would ever believe me.” Resp’t Ex. 105, Tr. Vol. 3, at 307. Bowen’s attorney

also called T.H.’s father, with whom T.H. had visited from the time she was four or five, and

with whom she had lived for a period of months around the age of 16. T.H.’s father described

getting T.H. admitted to a drug and alcohol treatment program, which she quit. He testified he

did not believe T.H. was trustworthy and that T.H. never told him Bowen had abused her or had

sex with her. Bowen’s attorney called T.H.’s step-mother who testified T.H. never reported any

improper overtures by Bowen, that T.H. had lied to her in the past, and that T.H. had refused to

follow the rules of the household. Bowen’s attorney also called T.H.’s grandfather, who lived in

3Dr. Ritzen also testified that T.H. had a sexually transmitted disease, but contrary to

petitioner’s counsel’s repeated assertions, I see no evidence or testimony about whether Bowen

did or did not have the same disease. Bowen’s counsel does not provide a citation to the record

to support her assertion that Bowen did not have the same sexually transmitted disease. Dr.

Ritzen testified she had no knowledge of Bowen’s medical history. Resp’t Ex. 105, Tr. Vol. 3, at

296.

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T.H.’s neighborhood when T.H. was young. He testified T.H. never disclosed any problem with

Bowen, she called Bowen “Dad,” and she did not start misbehaving until she began attending

junior high school. Finally, Bowen’s attorney called T.H.’s step-brother, who testified T.H. told

him she did not like Bowen because she did not like him being with her mother.

DISCUSSION

In his only ground for relief, Bowen alleges his trial counsel was ineffective for failing to

object to Dr. Ritzen’s testimony.

4

 Specifically, he asserts his trial counsel was ineffective for: 

(1) failing to object to Dr. Ritzen’s diagnosis of sexual abuse in the absence of any physical

findings to corroborate such a diagnosis when State v. Southard, 347 Or. 127, 139-41, 218 P.3d

104 (2009) justifies such an objection; and (2) for failing to object to Dr. Ritzen’s assertion that

Bowen was the perpetrator of the abuse.

I. Exhaustion and Procedural Default

Respondent questions whether Bowen properly exhausted his ineffective assistance of

trial counsel claim. 

Generally, a state prisoner must exhaust all available state court remedies either on direct

appeal or through collateral proceedings before a federal court may consider granting habeas

corpus relief. 28 U.S.C. § 2254(b)(1)(A). A state prisoner satisfies the exhaustion requirement

by “fairly presenting” his claim to the appropriate state courts at all appellate stages afforded

under state law, including a state supreme court with powers of discretionary review. Baldwin v.

Reese, 541 U.S. 27, 29 (2004); O’Sullivan v. Boerckel, 526 U.S. 838, 845-47 (1999). When a

4

In the same ground, Bowen also appears to allege a claim of ineffective post-conviction

counsel. Such a claim is not cognizable and is dismissed. Coleman v. Thompson, 501 U.S. 722,

752-53 (1991). 

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state prisoner fails to exhaust his federal claims in state court, and the state court would now find

the claims barred under applicable state rules, the federal claims are procedurally defaulted. 

O’Sullivan, 526 U.S. at 848; Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991). 

Here, Bowen filed a post-conviction petition on April 7, 2010 and did not raise the claim

of ineffective assistance of trial counsel he brings now. Resp’t Ex. 126. Bowen subsequently

brought a successive petition, on May 31, 2011, conceding he had previously filed a petition for

post-conviction relief, and relying on Southard to allege ineffective assistance of trial counsel for

failing to object to expert testimony diagnosing sexual abuse. Bowen did not raise any argument

regarding his trial counsel’s failure to object to Dr. Ritzen’s assertion that Bowen was the

perpetrator of the abuse. Resp’t Ex. 138.

The PCR court dismissed the second petition with an order, which read in relevant part:

Defendant contends that ORS 138.550(3) applies to bar this petition, as

Plaintiff previously filed a Petition for Post-Conviction relief in Case Number 08-

10-6957P.

Plaintiff argues that the case of State v. Southard, 374 Or App 656 (2001)

[sic] should be applied retroactively to his case, providing a basis for postconviction relief. The case of Umberger v. Czerniak, 232 Or App 563 (2009) is

controlling her[e]. Umberger held that the rule in Southard does not apply

retroactively to ineffective assistance of counsel claims. Plaintiff argues that the

counsel was ineffective for failing to essential[ly] make the arguments based on

existing case law prior to Southard[]. As Defendant points out, any arguments

based on case law that existed when Petitioner could have filed within the statute

of limitations are now barred by the Stat[ute] of Limitations. Plaintiff does not

raise any issues in this petition that could not or were not raised in the prior

action, nor does he give any reason why they could not have been raised.

Defendant’s motion is therefore granted, and Summary Judgment is

granted in favor of Defendant. Further, the Court specific[ally] finds this Petition

is without merit.

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Resp’t Ex. 145. The Oregon Court of Appeals summarily affirmed “on the ground that the

appeal does not present a substantial question of law.” Resp’t Ex. 149, at App. A.

The PCR court held Bowen’s second petition was untimely, successive, and, in any event,

lacked merit.5

 Thus, the PCR court expressly invoked an independent and adequate state rule to

deny Bowen’s petition. Coleman, 501 U.S. at 729–30. Bowen has not alleged any facts or

presented any arguments to indicate that the rule regarding successive petitions was unclear,

inconsistent, or anything other than well-established.6 See Collier v. Bayer, 408 F.3d 1279, 1284

(9th Cir. 2005) (a state procedural rule is “adequate” for purposes of preclusion if it is clear,

consistently applied, and well-established at the time of a petitioner's purported default); Bennett

v. Mueller, 322 F.3d 573, 581 (9th Cir. 2003) (a state procedural rule is “independent” for

purposes of preclusion if it is not interwoven with federal law and the state court explicitly

invoked the rule as the basis for its decision). Notably, “[a] state court’s application of a

procedural rule is not undermined where, as here, the state court simultaneously rejects the merits

of the claim.” Bennett, 322 F.3d at 580 (9th Cir. 2003). Since the Oregon Court of Appeals

summarily affirmed, and the last reasoned decision on Bowen’s ineffective assistance of trial

counsel claim clearly and expressly rested on an independent and adequate state ground, both

5A petition for post-conviction relief must be filed within two years of judgment if no

appeal is taken, or within two years of final appeal if appeal is taken. These timeframes may be

extended where “the court on hearing a subsequent petition finds grounds for relief asserted

which could not reasonably have been raised in the original or amended petition.” 

ORS 138.510(3). Further, all grounds for relief must be asserted in the original petition, unless

the grounds “could not reasonably have been raised in the original or amended petition[.]” 

ORS 138.550(3).

6

In fact, Bowen concedes his claim is procedurally defaulted.

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parts of Bowen’s ineffective assistance of trial counsel claim are procedurally defaulted. See

Lambright v. Stewart, 241 F.3d 1201, 1205 (9th Cir. 2001).

II. Application of Martinez v. Ryan

Bowen relies on Martinez v. Ryan, 132 S. Ct. 1309, 1313 (2012) as a basis for

establishing “cause” for his default. In that case, the Supreme Court held ineffective assistance

of counsel in an initial-review state collateral proceeding may provide cause to excuse the

procedural default of an ineffective assistance of trial counsel claim, provided that the defaulted

claim is “substantial.” 132 S. Ct. at 1318-20. Accordingly, to invoke this narrow exception,

Bowen must persuade the court that: (1) his ineffective assistance of trial counsel claim was

“substantial;” (2) the “cause” consisted of there being “no counsel” or only “ineffective” counsel

during the state collateral review proceeding; (3) the state collateral review was the “initial”

review proceeding; and (4) state law requires that an ineffective assistance of counsel claim be

raised in an initial-review collateral proceeding. Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013)

(citing Martinez, 132 S. Ct. at 1318-19). Only the first two factors are at issue.

Thus, in order to proceed to the merits of his ineffective assistance of counsel claim,

Bowen must demonstrate that (1) his “underlying ineffective-assistance-of-trial-counsel claim is

a substantial one, which is to say that . . . the claim has some merit,” and (2) establish that postconviction counsel was ineffective under the standards of Strickland v. Washington, 466 U.S.

668, 687-88 (1984). Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014) (quoting Martinez,

132 S. Ct. at 1318). 

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A claim must be examined under the two-part test set out in Strickland to determine

whether it is substantial. Pursuant to that test, petitioner must show both (1) that the attorney’s

performance fell below an objective standard of reasonableness; and (2) that the performance

prejudiced the defense. Strickland, 466 U.S. at 687, 688. There is a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance, or what

“might be considered sound trial strategy.” Id. at 689. Reasonableness is judged as of the time

of counsel’s conduct, not in hindsight. Id. at 689-90. A defendant is prejudiced by counsel’s

poor performance if “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. at 694. 

The substantiality of the claim and the ineffectiveness of post-conviction counsel factors

are interwoven because “[if] the claim of ineffective assistance of trial counsel is implausible,

then there could not be a reasonable probability that the result of the post-conviction proceedings

would have been different.” Clabourne, 745 F.3d at 377. Additionally, “[i]f trial counsel was

not ineffective, then [petitioner] would not be able to show that PCR counsel’s failure to raise

claims of ineffective assistance of trial counsel was such a serious error that PCR counsel ‘was

not functioning as the “counsel” guaranteed’ by the Sixth Amendment.” Sexton v. Cozner, 679

F.3d 1150, 1159 (9th

 Cir. 2012) (quoting Strickland, 466 U.S. at 687).

A. Substantiality of Bowen’s Ineffective Assistance of Counsel Claim: Diagnosis of

Sexual Abuse Absent Physical Findings

Bowen argues he should benefit from an Oregon Supreme Court decision issued two

months before his conviction became final, but four years after his trial had concluded and one

year after his appeal was decided. The case is State v. Southard, 347 Or. 127, 139-41, 218 P.3d

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104 (2009), in which the Oregon Supreme Court concluded the prejudice to a defendant

outweighed the slight probative value of an expert’s diagnosis of sexual abuse, in the absence of

physical evidence of such abuse.7 The Court commented such a diagnosis raises the risk the jury

will conclude the victim’s testimony is credible without engaging in its own credibility

determination.

I continue to agree with four other decisions from this district that counsel’s failure to

anticipate Southard’s holding on the admissibility of a sexual abuse diagnosis does not constitute

ineffectiveness. Hatchett v. Hill, Civ. No. 06-1023-TC, 2011 WL 7443755 (D. Or. Dec. 21,

2011), adopted, 2012 WL 673767 (D. Or. Feb. 29, 2012); Balogh v. Kilmer, Civ. No. 3:10-1283-

AC, 2012 WL 7830039 (D. Or. Nov. 29, 2012), adopted, 2013 WL 1352400 (D. Or. Apr. 3,

2013); Gresser v. Franke, Civ. No. 2:12-02073-HZ, 2014 WL 1155229 (D. Or. Mar. 20, 2014);

and McLain v. Blackletter, Civ. No. 3:08-1440-KI, 2012 WL 3116186 (D. Or. July 27, 2012).

When Bowen stood trial in 2005, “Oregon law allowed a medical expert to testify to a diagnosis

of sexual abuse even if that diagnosis was based entirely upon what the victim told the expert.” 

Gresser, 2014 WL 1155229, at *7 (citing State v. Wilson, 121 Or. App. 460, 462-67, 855 P.2d

657 (1993)). Only one case in this district holds differently. Wells v. Howton, Civ. No. 07-

1117-TC, 2011 WL 5999356 (D. Or. Aug. 22, 2011), adopted, 2011 WL 5999359 (D. Or. Nov.

29, 2011). As I have previously concluded in another case, I do not find the rationale in Wells to

7Southard was decided October 1, 2009. Bowen was found guilty on March 7, 2005 and

sentenced on June 10, 2005. Resp’t Ex. 128, 101. He appealed his convictions and sentence,

and the Oregon Court of Appeals issued a written decision on September 26, 2007, and adhered

to its decision on Bowen’s petition for reconsideration on June 11, 2008. Resp’t Ex. 110, 113. 

After the Oregon Supreme Court denied review, and the United States Supreme Court denied

Bowen’s petition for writ of certiorari, the Oregon Court of Appeals issued a final judgment on

December 2, 2009. Resp’t Ex. 125.

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be persuasive. See McLain, 2012 WL 3116186, at *7, n.1 (describing Wells as involving “a

unique set of facts and a complicated procedural posture”). 

As many of the decisions above recognize, Southard reflected a change in Oregon’s law

that trial counsel was not required to anticipate. Indeed, the Oregon Court of Appeals explained

in examining a similar PCR claim, “To render assistance that is constitutionally adequate, trial

counsel need not be clairvoyant. Given the state of the law prior to Southard, petitioner’s trial

counsel did not fail to exercise reasonable professional skill and judgment at petitioner’s 1998

trial” when an expert was permitted to testify as to the existence of a sexual abuse diagnosis. 

Umberger v. Czerniak, 232 Or. App. 563, 564, 222 P.3d 751 (2009) (per curiam). The Oregon

Court of Appeals’ decision is consistent with federal law. See Sophanthavong v. Palmateer, 378

F.3d 859, 870 (9th Cir. 2004) (“Strickland does not mandate prescience, only objectively

reasonable advice under prevailing professional norms”).8

Bowen attempts to distinguish the cases from this district by arguing those judgments

were final before Southard was decided, whereas the Oregon Court of Appeals did not issue

Bowen’s final judgment until two months after Southard was issued. See Bowen’s Br. in Supp.

of Pet. 14-15 (Hatchett’s appellate judgment issued May 8, 1998; Balogh’s appellate judgment

issued December 8, 2006; Gresser’s appellate judgment issued in 2008; McLain’s appellate

8Bowen submits affidavits from four criminal defense attorneys for the proposition that

the standard of care at the time of Bowen’s trial was to challenge expert testimony giving a

sexual abuse diagnosis. Regardless of the propriety of these submissions, they do not change my

view that Umberger persuasively explained the state of law prior to Southard. See also State v.

Feller, 247 Or. App. 416, 421, 269 P.3d 110 (2011) (“At the time of the trial in this case, which

occurred before Southard was decided, this type of diagnosis evidence was understood to be

admissible” and thus defense counsel’s failure to object demonstrates only the futility of such an

objection).

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judgment issued June 17, 2003). Bowen argues that because his judgment was not final at the

time the Southard decision was issued, he is entitled to application of the ruling. He cites Teague

v. Lane, 489 U.S. 288, 310 (1989) (plurality) and Penry v. Lynaugh, 492 U.S. 302 (1989),

arguing that “it is the state of the law at the time of finality of a conviction that controls.” 

Bowen’s Response to State’s Sur-Reply 2. 

Bowen does not explain why it is that a change in Oregon’s evidentiary law at the time

his conviction finalized controls my analysis of the effectiveness of his trial counsel four years

before. Indeed, to the contrary, Strickland directs that reasonableness is judged as of the time of

counsel’s conduct and not in hindsight. 466 U.S. at 689-90 (“[a] fair assessment of attorney

performance requires that every effort be made to eliminate the distorting effects of hindsight”);

Lowery v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994) (counsel’s conduct evaluated as of time of

conduct).

Bowen has not persuaded me that his ineffective assistance of trial counsel claim, on the

issue of the diagnosis of sexual abuse, is substantial as required by Martinez. Accordingly, any

ineffective assistance of PCR counsel does not constitute cause to excuse his procedural default.

B. Substantiality of Bowen’s Ineffective Assistance of Counsel Claim: Identification

of Bowen as the Perpetrator of the Abuse

As I indicated above, the second part of Bowen’s ineffective assistance of trial counsel

claim–that counsel was deficient for failing to object to the doctor’s assertion that the perpetrator

of the abuse was Bowen–is procedurally defaulted. Habeas review of procedurally defaulted

claims is barred unless the petitioner demonstrates cause for the procedural default and actual

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prejudice, or that the failure to consider the claims will result in a miscarriage of justice. 

Coleman, 501 U.S. at 750.

Again, Bowen relies on Martinez. Accordingly, just as above, Bowen must persuade the

court that: (1) his ineffective assistance of trial counsel claim was “substantial;” (2) the “cause”

consisted of there being “no counsel” or only “ineffective” counsel during the state collateral

review proceeding; (3) the state collateral review was the “initial” review proceeding; and (4)

state law requires that an ineffective assistance of counsel claim be raised in an initial-review

collateral proceeding. Trevino, 133 S. Ct. at 1918. Again, only the first two factors are at issue.

Bowen cites a number of cases for the proposition that, at the time of his trial, Oregon

law prohibited a witness from vouching for the credibility of another. Indeed, it was well-settled

that “‘a witness may not give an opinion on whether he believes a witness is telling the truth.’” 

State v. Leahy, 190 Or. App. 147, 152-53, 78 P.3d 132 (2003) (quoting State v. Middleton, 294

Or. 427, 438, 657 P.2d 1215 (1983)); see also State v. Keller, 315 Or. 273, 285, 844 P.2d 195

(1993) (testimony that child had not been coached and that child was telling what happened to

her body was improper vouching); State v. Milbradt, 305 Or. 621, 630, 756 P.2d 620 (1988) (en

banc) (expert’s opinion that person is not deceptive, could not lie without being tripped up, and

would not betray a friend was impermissible vouching); State v. McQuisten, 97 Or. App. 517,

519-20, 776 P.2d 1304 (1989) (officer’s testimony that complaining witness was not fabricating

was inadmissible); State v. Remme, 173 Or. App. 546, 561, 23 P.3d 374 (2001) (expert may not

testify as to absence of evidence of leading, coaching, or deception).

I do not agree with Bowen that this case falls in the category of cases on which he relies. 

Whether Dr. Ritzen’s testimony constituted vouching for the truthfulness of T.H.’s allegations

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was not as clear-cut prior to Southard. Indeed, in Logan v. State, 259 Or. App. 319, 313 P.3d

1128 (2013), the testimony at issue came from a CARES doctor who, after examining the alleged

victim, recommended the victim not have contact with the defendant, that the defendant undergo

a sex offender evaluation, and that the safety of any further contact between the defendant and his

other child should be evaluated. The defendant’s attorney did not object to this testimony. The

Logan court undertook an exhaustive analysis of Oregon case law at the time of that defendant’s

trial and concluded, “the fact that [the doctor’s] testimony allowed for [certain] inferences did not

render it an impermissible comment on the [victim’s] credibility, and accordingly, any objection

to it [by the trial attorney] would have failed.” Logan, 259 Or. App. at 332.9 

Given the line of cases prior to Southard, competent counsel reasonably could have

believed an objection would not be well-taken and drawing attention to the testimony would not

be helpful to the defense. Styers v. Schriro, 547 F.3d 1026, 1030 (9th Cir. 2008) (petitioner must

demonstrate that “had counsel so moved, there is [a] reasonable probability that the motion

would have been granted”); Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (“this Court has

never required defense counsel to pursue every claim or defense, regardless of its merit, viability,

or realistic chance for success”); Sexton, 679 F.3d at 1157 (“[c]ounsel is not necessarily

ineffective for failing to raise even a nonfrivolous claim”). Bowen has not met his burden of

showing his trial counsel’s representation was not objectively reasonable. 

9Notably, the Logan court distinguished State v. Sanchez-Alfonso, 352 Or. 790, 801-02,

293 P.3d 1011 (2012), in which there was no basis under Oregon Evidentiary Code 702 to admit

a CARES report opining “[the victim] was physically abused by [the defendant].” Like Logan,

Bowen raises no claim alleging his counsel was ineffective for failing to object to expert

testimony in violation of OEC 702.

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Even if reasonable jurists could argue that trial counsel acted deficiently, Bowen still fails

to meet the first Martinez prong because he has not established prejudice. To do so, Bowen must

show a reasonable probability that but for counsel’s failure to object, the result would have been

different. Hurles v. Ryan, 752 F.3d 768, 782 (9th Cir. 2014). Bowen has not shown that the

evidence against him would have lessened to any noteworthy degree if Dr. Ritzen had not

testified that Bowen was the perpetrator of the abuse described by T.H. in her CARES interview. 

Bowen’s theory of the case–which he has not said was unreasonable–was that T.H. was a liar, a

rebellious runaway, that she sought revenge when she was denied something, that she made up

the sexual abuse to excuse her substance abuse, and that she benefitted by playing the role of the

victim. Resp’t Ex. 104, Tr. Vol. 2, 108-112 (opening statement); Resp’t Ex. 106, Tr. Vol. 4, at

376-410 (closing argument). Thus, the disputed issue at trial was whether T.H. had been

sexually abused; Bowen never attempted to defend the charge by arguing someone else was the

perpetrator of any abuse. Given that Dr. Ritzen’s diagnosis of sexual abuse was properly

admitted at the time of Bowen’s trial under the holding of State v. Wilson, 121 Or. App. 460, 855

P.2d 657 (1993), the expert’s opinion that Bowen was the perpetrator of the abuse did not speak

to the disputed issue. If the jury accepted Dr. Ritzen’s testimony that T.H. had been sexually

abused, which Dr. Ritzen was permitted to say at the time of Bowen’s trial, it would also have

accepted that Bowen was the perpetrator regardless of whether Dr. Ritzen was permitted to give

her opinion on the matter. Additionally, T.H. testified in detail about Bowen’s sexual abuse, and

her testimony that Bowen was the perpetrator of abuse was substantiated by T.H.’s mother and 

T.H.’s friend. Accordingly, since there is no reasonable probability that an objection to Dr.

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Ritzen’s testimony would have altered the outcome of Bowen’s conviction, Bowen’s claim is

insubstantial under Martinez. See Miller–El, 537 U.S. at 336.

Bowen’s ineffective assistance of trial counsel claim–for failure to object to testimony

regarding Bowen as the perpetrator of abuse–is not substantial as required by Martinez. 

Accordingly, any ineffective assistance of PCR counsel does not constitute cause to excuse his

procedural default.

CONCLUSION

Based on the foregoing, the petition for writ of habeas corpus [2] is denied. This

proceeding is dismissed with prejudice. Because petitioner has not made a substantial showing

of the denial of a constitutional right, a certificate of appealability is denied. See 28 U.S.C. §

2253(c)(2). 

IT IS SO ORDERED.

DATED this 1st day of April, 2015. 

 /s/ Garr M. King 

Garr M. King

United States District Judge

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