Russum v. Bowser

MICHAEL JAMES RUSSUM, Petitioner, v. MR. T. BOWSER, Respondent.

Case No. 2:18-cv-02035-AA

UNITED STATES DISTRICT COURT DISTRICT OF OREGON

August 31, 2020

OPINION AND ORDER

AIKEN, District Judge:

Petitioner brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his sodomy convictions on grounds that he was denied his constitutional rights to counsel under the Sixth Amendment. The Oregon courts rejected his claims, and petitioner fails to overcome the deference this Court must afford those decisions. Petitioner is not entitled to federal habeas relief, and the Petition is denied.

BACKGROUND

In August 2009, petitioner was charged with four counts of Sodomy in the First Degree. Resp't Ex. 102. The charges arose from the abuse of petitioner's stepdaughter, KV, when she was seven and eight years old.

Prior to trial, petitioner was detained at a Multnomah County jail. Detective Hickey, a police detective working on the case, suspected that petitioner was attempting to influence his wife, and Det. Hickey requested that jail officials monitor petitioner's outgoing mail. As part of that process, jail personnel opened and scanned petitioner's mail and provided it to Det. Hickey. After reading some of the letters, Det. Hickey realized that at least one letter was written to petitioner's criminal defense attorney. Det. Hickey notified the prosecutor and mailed the letter to defense counsel. Petitioner and his attorney subsequently discovered that additional attorney-client correspondence between them had been opened and resealed outside of petitioner's presence, including envelopes marked "Legal Mail." It was unclear whether those letters had been read by jail personnel or Det. Hickey. See State v. Russum, 265 Or. App. 103, 105-07, 333 P.3d 1191, rev. denied, 356 Or. 575, 342 P.3d 88 (2014).

Petitioner moved to dismiss the indictment, with prejudice, based on the intrusion into his confidential attorney-client communications. The trial court denied the motion, finding that the confidential communications were not exploited by Det. Hickey or provided to the prosecutor, and it was unclear how the communications would have any impact on petitioner's trial. 265 Or. App. at 109. Further, the trial court found no precedent for petitioner's requested remedy of dismissal with prejudice. Instead, the trial court issued a precautionary order and prohibited Det. Hickey from testifying about anything he learned from the letter. Id. The case proceeded to trial.

In his opening statement, petitioner's counsel argued that none of the professionals involved in the investigation displayed any "professional curiosity" to probe or question the details of KV's allegations. Resp't Ex. 103 at 212-14. Counsel also argued that once a child victim makes a disclosure, "it starts a cascade of events and there's no stopping it." Resp't Ex. 103 at 212.

During the State's case in chief, KV testified that petitioner had put his "front private" in her mouth on four different occasions. Resp't Ex. 103 at 222-23. KV's mother testified that KV had disclosed to her older sister that "when nobody else was around that, you know, Daddy would make her close her eyes and put something in her mouth." Resp't Ex. 103 at 242.

Noelle Gibson, a pediatric nurse practitioner, also testified. Ms. Gibson had conducted a forensic medical examination of KV at CARES Northwest, a nonprofit organization whose mission "is to provide...medical evaluations for children who are suspected to be victims of abuse or neglect." Resp't Ex. 103 at 276. Ms. Gibson described the physical examination and testified that KV whispered to her, "And this is, quote, My daddy put his private in my mouth, end quote." Resp't Ex. 103 at 283.

On cross-examination, petitioner's counsel questioned Ms. Gibson about the nature of her examination, as follows:

Q: Okay. So what do you do to rule out false accusations?

A: You know, we gain -- we gather as much history as we can, including previous history, talk with the people -- As much as possible, we talk to the people that initially were disclos -- the disclosure was initially made to or as close there as possible and talk with the child and do a physical examination.

Q: Okay. But how do you rule out false accusations or inaccurate reporting?

A: Just how I said. We base it on the history, the physical examination, and the child's statements and -- you know, again, it's one of those things you can never completely rule anything out, but there's a lot of medical diagnoses that cannot, you know, completely be ruled out or in.

Q: Okay. Does that mean, then, that if I'm representing somebody who comes to my office and says, "I'm being accused of molesting my grandson," can I then have the grandson sent over to you to be evaluated to rule out the molestation?

A: I don't think we rule out. I think we -- we make a diagnosis based on the information available as to likelihood that it occurred.

Q: Okay. So you don't rule anything out. You just document what people come in and tell you.

A: And what we -- what we observe.

Q: Okay. But in this case you didn't observe any physical signs of abuse.

A: That's correct.

Q: So all you're doing here now is just reporting, writing down and repeating what someone just told you.

A: Right.

***

Q: So it's just repeating the same story, correct?

A: Correct.

Resp't Ex. 103 at 286-288. After counsel's cross-examination, the prosecutor conducted a short, redirect examination:

Q: ... Did you make treatment recommendations in this case?

A: Yes, I did.

Q: And that's something that you do at CARES, correct?

A: Yes.

Resp't Ex. 103 at 297. Petitioner requested re-cross examination and elicited the following testimony from Ms. Gibson:

Q: What were those treatment recommendations related to?

A: Again, the history, physical examination.

Q: You mean -- Well, what were your treatment recommendations?

A: Would you like me to read them?

Q: Please.

Resp't Ex. 103 at 297-98. Ms. Gibson proceeded to read twelve recommendations, including the recommendations that "[KV] should be entered into individual therapy with a therapist experienced in treating children who have been the victims of sexual abuse" and that KV's older sister and petitioner's other children were potentially at risk for abuse and should be examined. Resp't Ex. 103 at 298-300.

Kimberly Goldstein, a social worker for CARES Northwest, testified about her recorded interview with KV, and the interview was played for the jury. Resp't Ex. 103 at 305, 308-345. During the interview, Ms. Goldstein asked KV what she had whispered to Ms. Gibson during the medical examination. Rather than tell Ms. Goldstein, KV agreed to write what she had said. Ms. Goldstein testified that KV wrote, "My dad makes me suck on his private." Resp't Ex. 103 at 325.

During closing argument, petitioner's counsel attempted to discredit the testimony of Ms. Gibson and Ms. Goldstein by arguing, "Their job is to convince you that when a child makes these accusations, that it's true. They are set up for that purpose." Resp't Ex. 103 at 407. Counsel continued:

I'm not in any way saying these people here from CARES wake up every morning and go, "Let's just make up some stuff and convince some people." They don't do that. They don't (inaudible). But when that's all you do and that's your focus, sometimes you lose objectivity.

***

The CARES interview and the entire CARES process is a staged play. They come in and they begin with a CARES medical evaluation. You get a medical evaluation. How can you not trust a person wearing that -- the metaphorical white coat? Well, my question to Ms. Gibson was, "It's not really like a medical exam, is it?" "Well, actually, it's not." Because the medical exams, you don't have Community Partners. Anytime somebody starts to use one of the euphemisms like Community Partners or the cops, they're trying to sell you something....Yeah, they're there for a purpose. They're there knowing that this is where this is going to end up. That's why they do it.

***

Why would they do the medical examination first, the part that cannot be reported, the part that you don't get to see, the part where the child says, "Something was put in my mouth," and before she knows it, there's somebody staring at her privates through a microscope? ... Again, it's not done maliciously, but that happens (inaudible). Ms. Gibson said, "Well, we always do that."... The (inaudible) commitment to the consistency of the process, that's more important than the result.

***

In opening I said this concept was very much like a train. Once it gets started, it doesn't stop. Once you go to CARES, there's no critical analysis. There's no question. There's no testing for (inaudible) the information. There's packaging and presentation. The train not only has left, it's not slowing down[.]

Resp't Ex. 103 at 407-16. The jury convicted petitioner of all four sodomy counts.

At sentencing, petitioner's counsel presented argument and a statement by petitioner's grandfather on petitioner's behalf. Resp't Ex. 103 at 434-37, 439. Based on the circumstances of the case, petitioner's criminal history, and the lack of "actual mitigation in relation to the case or to Mr. Russum," the court felt "compelled to follow the State's sentencing recommendation." Resp't Ex. 103 at 444-45. Accordingly, the court imposed consecutive sentences of three hundred months on Counts 1 and 2, and concurrent sentences of three hundred months on Counts 3 and 4, for a total sentence of six hundred months. Resp't Ex. 101.

Petitioner directly appealed the denial of his motion to dismiss the indictment on grounds that the interception of his mail violated his Sixth Amendment right to counsel. Resp't Ex. 104. The Oregon Court of Appeals affirmed in a written opinion, and the Oregon Supreme Court denied review. State v. Russum, 265 Or. App. 103, 333 P.3d 1191, rev. denied, 356 Or. 575, 342 P.3d 88 (2014).

Petitioner then sought post-conviction relief (PCR) on grounds that his counsel...