No.

09-35276

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

RICHARD R. LEE, Petitioner-Appellee, v. ROBERT O. LAMPERT, Respondent-Appellant.

Appeal from the United States District Court for the District of Oregon

RESPONSE BRIEF OF PETITIONER-APPELLEE

Stephen R. Sady Chief Deputy Federal Public Defender 101 SW Main Street, Suite 1700 Portland, Oregon 97204 (503) 326-2123 Attorney for Petitioner-Appellee

TABLE OF CONTENTS Page Table of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v Statement of Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Nature of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Course of Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 A. Matthew Spontaneously Reported Abuse By Robert Nachand, A Confessed Child Sex Abuser Who Was Frequently Left Alone With The Child, Gave The Police Detailed Descriptions Of The Abuse, And Did Not State That Any Other Abuse Occurred. . . . . . . 9 Matthew’s Father Initiated The Allegations Against Mr. Lee Months After The First Police Interview With Matthew. . . . . . . . . . 11 The Police Officer Interviewed Matthew About The Abuse By Richard And Robert. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 As A Result Of The State’s Invocation Of Oregon’s Rape-Shield Law, The Petitioner Could Not Provide An Opening Statement And Could Not Cross-Examine Regarding The Nachand Abuse Until After Matthew Testified And Just Before The State Rested .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Matthew Confused The Defendant With Robert Nachand, The Man Who Was Convicted Of Abusing Him.. . . . . . . . . . . . . . . . . . . 17

B.

C.

D.

E.

i

F.

The State’s Evidence Of Sodomy Was Admitted Through Hearsay Statements Attributed To The Child.. . . . . . . . . . . . . . . . . . . . . . . . . 20 Other State Witnesses Provided No Evidence Of Sodomy. . . . . . . . 23 Despite Trial Counsel’s Letter To Appellate Counsel Regarding Meritorious Appellate Issues, Appellate Counsel Filed No Direct Appeal, Claiming He Found No Non-Frivolous Issues. . . . . . . . . . . 26 Mr. Lee Filed A Timely Petition For Post-Conviction Relief. . . . . . 27 Mr. Lee Submitted Reliable New Evidence That His Federal Petition, If Held To Be Untimely, Should Be Reviewed On The Merits Under Schlup. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 The State Offered Evidence To Rebut Mr. Lee’s Claim Of Actual Innocence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Following Its Finding That Mr. Lee Had Shown Actual Innocence, The District Court Granted The State’s Request To Brief The Merits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 The District Court Granted Relief On The Merits. . . . . . . . . . . . . . . 37

G. H.

I. J.

K.

L.

M.

Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 I. The District Court Correctly Found That New Evidence Within The Meaning Of Schlup v. Delo, 513 U.S. 298 (1995), Cast Sufficient Doubt On The Reliability Of The State Court Trial To Overcome Procedural Bars To Federal Review. . . . . . . . . . . . . . . . . 46 A. The Nachand Material Provides Critical New Evidence That Establishes Mr. Lee’s Innocence. . . . . . . . . . . . . . . . . . . 48

ii

B.

The Expert Opinion Of Dr. Bruck Provided Substantial New Evidence Of The Unreliability Of Statements Used At Trial.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Other New Evidence Supported The District Court’s Finding Regarding The Schlup Gateway. . . . . . . . . . . . . . . . . 57

C.

II.

Where The Petitioner Filed For State Post-Conviction Relief Within The Statutory Time Provided By State Law, And Filed For Federal Habeas Corpus Relief Well Within One Year From The State Proceedings Becoming Final, The Actual Innocence Showing Under Schlup Permits The Federal Court To Review The Constitutional Errors That Permeated The State Proceedings .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 A. Actual Innocence, Not The Type Of Procedural Bar, Governs Whether The Merits Are Reached. . . . . . . . . . . . . . . 59 Extending The Miscarriage of Justice Exception To The Statute Of Limitations Avoids Serious Constitutional Questions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Reaching The Merits Upon A Showing Of Actual Innocence Under Schlup Is Consistent With The Statute. . . . 63 The Circuits Have Concluded That Schlup May Excuse An Untimely Petition With And Without A Showing Of Diligence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

B.

C.

D.

III.

The District Court Did Not Abuse Its Discretion In Its Conduct Of The Hearing Regarding Actual Innocence Under Schlup.. . . . . . 68 A. The State Had Ample Opportunity To Examine Dr. Bruck And Obtain An Expert. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 The District Court Correctly Struck The Interrogating Officer’s Report Opining Regarding Credibility. . . . . . . . . . . 72 iii

B.

C.

The District Court Correctly Considered The Testimony Of Now-Adult Child Victim By Declaration. . . . . . . . . . . . . . . . 73

IV.

Where The Trial Judge Found That The State Court Did Not Have Or Consider Basic Information Necessary To Evaluate The Ineffectiveness Of State Trial And Appellate Counsel, The Trial Judge Correctly Found That Deference Was Not Due And That, In Any Event, The State Trial Court Rulings Were Unsupported .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 Where The Trial Judge Found That Multiple Constitutional Violations Infected Both The State Trial And Appeal, The Trial Judge Correctly Found That The Pervasive Court Errors Required That The Petitioner Be Afforded A New Trial Free From Those Constitutional Defects. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

V.

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 Statement of Related Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Brief Format Certification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

iv

TABLE OF AUTHORITIES Page FEDERAL CASES Anders v. California, 386 U.S. 738 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Anderson v. Bessemer City, 470 U.S. 564 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Araujo v. Chandler, 435 F.3d 678 (7th Cir.2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Beuke v. Houk, 537 F.3d 618 (6th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Bockting v. Bayer, 399 F.3d 1010 (9th Cir. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Calderon v. Thompson, 523 U.S. 538 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55, 64 Calderon v. United States District Court, 128 F.3d 1283 (9th Cir. 1997), overruled on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998).. . 55, 58 Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 56 Clark v. Martinez, 543 U.S. 371 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Cooper v. Brown, 510 F.3d 870 (9th Cir. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

v

Crawford v. Washington, 541 U.S. 36 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 David v. Hall, 318 F.3d 344 (1st Cir.2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Davis v. Alaska, 415 U.S. 308 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 84 Doe v. Menefee, 391 F.3d 147 (2nd Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61, 65 In re Dorsainvil, 119 F.3d 245 (3d Cir.1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Duckett v. Godinez, 109 F.3d 533 (9th Cir. 1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Duncan v. Ornoski, 528 F.3d 1222 (9th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 Ferguson v. Palmateer, 321 F.3d 820 (9th Cir. 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Flanders v. Graves, 299 F.3d 974 (8th Cir. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Gandarela v. Johnson, 286 F.3d 1080 (9th Cir. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Gersten v. Senkowski, 426 F.3d 588 (2d Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 Gibson v. Klinger, 232 F.3d 799 (10th Cir.2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65, 66

vi

Goel v. Gonzalez, 490 F.3d 735 (9th Cir. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Griffin v. Johnson, 350 F.3d 956 (9th Cir. 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 54 Harris v. Vasquez, 949 F.2d 1497 (9th Cir. 1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 House v. Bell, 547 U.S. 518 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim House v. Bell, 2007 WL 4568444 (E.D. Tenn.2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 INS v. St. Cyr, 533 U.S. 289 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Jackson v. Virginia, 443 U.S. 307 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Johnson v. Knowles, 541 F.3d 933 (9th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59, 65 Kaufman v. United States, 394 U.S. 217 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Kuenzel v. Allen, 488 F.3d 1341 (11th Cir. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 LaGrand v. Stewart, 133 F.3d 1253 (9th Cir. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 LaJoie v. Thompson, 217 F.3d 663 (9th Cir. 2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82, 84

vii

Lambert v. Blodgett, 393 F.3d 943 (9th Cir. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Latzer v. Abrams, 602 F. Supp. 1314 (D.C.NY 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 17 Lee v. Lampert, 607 F. Supp. 2d 1204 (D. Or. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Lee v. Lampert, 92 Fed. Appx. 532 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Lee v. Lampert, 2009 WL 1118708 (D.Or. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 Majoy v. Roe, 296 F.3d 770 (9th Cir. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59, 61, 65 Marbury v. Madison, 1 Cranch 137 (1803). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 McCray v. Vasbinder, 499 F.3d 568 (6th Cir.2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 Miller v. Marr, 141 F.3d 976 (10th Cir.1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Murray v. Carrier, 477 U.S. 478 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63, 66, 67 O'Neal v. Lampert, 199 F. Supp. 2d 1064 (D.Or. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 60

viii

Paulino v. Harrison, 542 F.3d 692 (9th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Pike v. Guarino, 492 F.3d 61 (1st Cir. 2007)A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Pirtle v. Morgan, 313 F.3d 1160 (9th Cir.2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Richter v. Hickman, 2009 WL 2425390 (9th Cir. Aug. 10, 2009).. . . . . . . . . 6, 80, 81, 82, 86, 87 Roy v. Lampert, 465 F.3d 964 (9th Cir. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Schlup v. Delo, 513 U.S. 298 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Shapiro v. Thompson, 394 U.S. 612 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Sherbert v. Verner, 374 U.S. 398 (1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Sistrunk v. Armenakis, 292 F.3d 669 (9th Cir. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 53 Smith v. Baldwin, 510 F.3d 1127 (9th Cir. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 72 Souter v. Jones, 395 F.3d 577 (6th Cir. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . 61, 62, 64, 65 Strickland v. Washington, 466 U.S. 668 (9th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85, 86

ix

Tapia v. Roe, 189 F.3d 1052 (9th Cir. 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Triestman v. United States, 124 F.3d 361 (2d Cir.1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 United States v. Benavidez-Benavidez, 217 F.3d 720 (9th Cir. 2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 United States v. Collins, 90 F.3d 1420 (9th Cir. 1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 United States v. Scheffer, 523 U.S. 303 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Wainwright v. Sykes, 433 U.S. 72 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 Whorton v. Bockting, 549 U.S. 406 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Williams v. Bagley, 380 F.3d 932 (6th Cir.2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Williams v. Taylor, 529 U.S. 362 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Williams v. Woodford, 384 F.3d 567 (9th Cir. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 68 Young v. United States, 535 U.S. 43 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Zadyvdas v. Davis, 533 U.S. 678 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

x

STATE CASES Hunter v. Maass, 106 Or. App. 438, 808 P.2d 723 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Lerch v. Cupp, 9 Or. App. 508, 497 P.2d 379 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Palmer v. State of Oregon, 318 Or. 352, 867 P.2d 1368 (1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 State v. Balfour, 311 Or. 434, 814 P.2d 1069 (1981).. . . . . . . . . . . . . . . . . . . . . . 3, 26, 28, 30 State v. Martin, 226 Or. App. 199, 203 P.3d 220 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 State v. Wright, 97 Or. App. 401, 776 F.2d 1294 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 DOCKETED CASES State of Oregon v. Richard Robert Lee, Linn County Circuit Court Case No. 94071507. . . . . . . . . . . . . . . . . . . . . . 34 FEDERAL STATUTES 28 U.S.C. § 2244(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63, 64, 77 28 U.S.C. § 2244(d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63, 64 28 U.S.C. § 2246. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69, 70 28 U.S.C. § 2254. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 30, 63, 77 28 U.S.C. § 2254(d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

xi

28 U.S.C. § 2254(d)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 28 U.S.C. § 2254(e)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 28 U.S.C. § 2254(e)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75, 76, 77 Fed. R. Civ. P. 52(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 STATE STATUTES Or. Rev. Stat. 138.510(3).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 27 Oregon Evidence Code Rule 412. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

xii

STATEMENT OF ISSUES I. Did The District Court Correctly Find That New Evidence Within The Meaning Of Schlup v. Delo, 513 U.S. 298 (1995), Cast Sufficient Doubt On The Reliability Of The State Court Trial To Overcome Procedural Bars To Federal Review Where The Evidence Included The Child’s Initial Police Report Denying Any Abuse Other Than Extensive Sexual Abuse By A Different Person, As Well As Expert Psychiatric Evidence Regarding The Unreliability Of Statements Obtained From The Child Many Months After The Initial Police Interview? Where The Petitioner Filed For State Post-Conviction Relief Within The Statutory Time Provided By State Law, And Filed For Federal Habeas Corpus Relief Well Within One Year From The State Proceedings Becoming Final, Does The Actual Innocence Showing Under Schlup Permit The District Court To Review The Constitutional Errors That Permeated The State Trial Despite The State’s Claim That The Federal Petition Was Filed Too Late? Did The District Court Abuse Its Discretion In Its Conduct Of The Hearing Regarding Actual Innocence Under Schlup? Where The District Court Found That The State Court Did Not Have Or Consider Basic Information Necessary To Consider The Ineffectiveness Of State Trial And Appellate Counsel, Did The District Court Correctly Find That Deference Was Not Due And That, In Any Event, The State Trial Court Rulings Were Unsupported? Where The District Court Found That Multiple Constitutional Violations Infected Both The State Trial And Appeal, Did The District Court Correctly Find That The Pervasive Errors Required That The Petitioner Be Afforded A New Trial Free From Those Constitutional Defects?

II.

III.

IV.

V.

1

STATEMENT OF THE CASE Nature of the Case This is the State’s appeal from the opinion and order of the Honorable Owen M. Panner, Senior United States District Judge for the District of Oregon, granting habeas corpus relief under 28 U.S.C. § 2254 based on findings that the petitioner provided sufficient evidence of actual innocence to require vacation of state court convictions rendered unreliable by multiple constitutional flaws in the underlying proceedings. The District Court’s ruling is reported as Lee v. Lampert, 607 F. Supp. 2d 1204 (D. Or. 2009). Course of Proceedings On September 27, 1994, the grand jury for Linn County, Oregon, charged Richard Lee with two counts of unlawful sexual contact (Counts 1 and 4) and two counts of deviate sexual intercourse (Counts 2 and 3) against a four-year-old child. ER 213. Trial counsel moved to admit evidence of abuse by another, but the trial court denied the motion under Oregon’s rape-shield law. ER 222. After a trial by jury, Mr. Lee was convicted on all counts, three counts by non-unanimous jury. Defense counsel did not move for a judgment of acquittal after the State’s case, move to dismiss any of the sodomy charges, or a move for judgment notwithstanding the verdict. 2

Although Mr. Lee’s trial lawyer wrote to the appellate lawyer identifying legal issues, the appellate lawyer filed a brief claiming no nonfrivolous issues on appeal pursuant to the state procedure in State v. Balfour, 311 Or. 434, 814 P.2d 1069 (1981). ER 485. The direct appeal became final on June 19, 1996. ER 102. On February 23, 1998, well within the two years permitted under Or. Rev. Stat. 138.510(3) for filing for post-conviction relief, Mr. Lee filed his initial state petition challenging the proceedings below. ER 103. Following the denial of his postconviction petition, he filed his appeal on September 21, 2000, and, following affirmance without opinion, filed a petition for review in the Oregon Supreme Court on May 30, 2001. ER 604, 663. The Oregon Supreme Court denied review on August 7, 2001. ER 673. Seven months later, on March 11, 2002, Mr. Lee filed his federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ER 85. On April 15, 2002, Magistrate Judge John Cooney issued an order to show cause why the petition should not be dismissed as untimely, which was followed by a pro se response on September 27, 2002 (CR 4, 7). After findings and recommendations and objections, District Judge Michael Hogan entered an order dismissing the proceedings on December 4, 2002 (CR 12). Mr. Lee filed a timely notice of appeal to this Court on January 6, 2003 (CR 13). 3

On February 25, 2003, Judge Hogan entered an order denying a certificate of appealability (CR 14). This Court, however, granted a certificate of appealability on August 18, 2003 and appointed counsel (CR 17). On March 24, 2004, this Court reversed and remanded on the grounds that the sua sponte dismissal was not supported by the seven months between the filing of the federal petition and the alleged date the state proceedings became final. Lee v. Lampert, 92 Fed. Appx. 532 (9th Cir. 2004). The mandate issued on April 22, 2004, and Magistrate Judge Cooney set a scheduling order on September 20, 2004 (CR 18, 19). On April 22, 2005, the State filed its response and answer to the habeas corpus petition (CR 27, 28). On June 21, 2005, the petitioner moved to amend the petition and, with the concurrence of the State, to hold the case in abeyance to permit state post-conviction exhaustion regarding Crawford v. Washington, 541 U.S. 36 (2004), which this Court had held applied retroactively in Bockting v. Bayer, 399 F.3d 1010 (9th Cir. 2005) (CR 30, 31). The first amended petition was filed on July 25, 2005. ER 117. After a series of status reports regarding the Crawford issue, the Supreme Court resolved the Crawford issue against retroactivity in Whorton v. Bockting, 549 U.S. 406 (2007). Mr. Lee filed his memorandum and exhibits in support of relief on April 25, 2007. SER 001; ER 123.

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The State filed its response to the petitioner’s memorandum and supplemental exhibits on October 29, 2007, to which the petitioner replied on November 29, 2007. SER 173. After oral argument on January 15, 2008 (SER 181), Magistrate Judge Mark Clarke entered findings and recommendations to deny the amended petition, noting: The court is troubled by the confusing testimony of the young victim in the context of multiple alleged abusers and potential evidentiary problems at trial. Newly presented reliable evidence presented by petitioner compounds the concerns of the court. However, under habeas corpus law, there is nothing at the federal habeas level to reach these concerns. ER 25. On March 25, 2008, the petitioner filed objections to the findings and recommendations asserting that the magistrate judge misapplied the governing law (ER 674), to which the State responded on April 1, 2008 (CR 78). On July 30, 2008, Judge Panner set the case for an evidentiary hearing and oral argument (CR 80, 81). After submission of motions to strike, briefing, and exhibits (ER 677, 712, 734, 745; SER 220, 223, 227, 231), Judge Panner held an evidentiary hearing on October 30, 2008, ruling on motions to strike, finding that a sufficient showing had been provided for him to address the merits of the constitutional claims, and setting additional briefing on the merits (ER 748). After further briefing and submission of supplemental exhibits by the State and the petitioner (SER 235-322), Judge Panner held a hearing on the merits of the petition on January 13, 2009 (ER 851). 5

On March 24, 2009, Judge Panner filed his opinion, order, and judgment granting the petition and allowing the State 120 days to retry Mr. Lee, with further delays permitted in accordance with state speedy trial laws (ER 35, 84). On April 2, 2009, the State filed a motion and memorandum requesting a stay pending appeal (CR 115, 116). After the petitioner filed an opposition (CR 123), Judge Panner entered an amended order on April 14, 2009, denying the motion for a stay and, on the State’s later request, entered an unopposed no-contact order (SER 323). Upon the State’s appeal regarding the stay, this Court entered an order extending the stay and placing this matter for expedited consideration on the October calendar. Standard of Review The decision to grant a petition for habeas corpus relief is reviewed de novo, and the District Court’s factual determinations are reviewed for clear error. Richter v. Hickman, 2009 WL 2425390 *5 (9th Cir. Aug. 10, 2009) (en banc); Paulino v. Harrison, 542 F.3d 692, 698 (9th Cir. 2008) (citing United States v. Collins, 90 F.3d 1420, 1430 (9th Cir. 1996)); Lambert v. Blodgett, 393 F.3d. 943, 964-65 (9th Cir. 2004). If a habeas petitioner “presents evidence of innocence so strong that the court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of constitutional error,” the court may consider the merits of the petition. Schlup v. Delo, 513 U.S. 298, 316 (1995). The standard for relief under the 6

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) is whether a constitutional violation resulted in a decision that 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 reasonable determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d). A federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case. Williams v. Taylor, 529 U.S. 362, 412-413 (2000). Where no state court ever reached the relevant issues, the Court is not “bound by the AEDPA’s strictures.” See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir.2002) (holding that “when it is clear that a state court has not reached the merits of a properly raised issue, we must review it de novo”). Decisions regarding the conduct of the Schlup hearing are reviewed for abuse of discretion. Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004) (citing Tapia v. Roe, 189 F.3d 1052, 1056 (9th Cir. 1999)). STATEMENT OF FACTS Judge Panner’s 49-page opinion sets out a complete and accurate rendition of the relevant facts. ER 35. In contrast, the State provides a statement of facts that does not accurately characterize the proceedings below. For example, 7

The State omits the initial police interview with the child regarding Nachand’s abuse, during which “Matthew gave no further disclosure of any other sexual abuse,” and his mother stated, “Matthew did not disclose any further abuse;” The State fails to present the chronology of reports and contact, the initial report being only Nachand and no mention of Mr. Lee until three to four months later; The State leaves out the child’s trial testimony denying that any act of sodomy occurred; The State does not mention that Robert Nachand lived with the babysitter, was left alone with Matthew, and was always present on the few occasions when Mr. Lee is alleged to have been at the apartment. The State does not include that state appellate counsel refused to file a brief despite a letter from trial counsel indicating that Mr. Lee was falsely accused and identifying confrontation clause violations.

The petitioner relies on the extensive statement of facts in the District Court’s opinion, providing a statement of the facts consistent with the District Court opinion and with citation to the record. The Court should review with deference the District Court’s findings of facts based in documents as well as testimony. Fed. R. Civ. P. 52(a) (“Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, . . . .”); Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985); Duckett v. Godinez, 109 F.3d 533, 534 (9th Cir. 1997).

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A.

Matthew Spontaneously Reported Abuse By Robert Nachand, A Confessed Child Sex Abuser Who Was Frequently Left Alone With The Child, Gave The Police Detailed Descriptions Of The Abuse, And Did Not State That Any Other Abuse Occurred.

The babysitter’s live-in boyfriend, Robert Nachand, was frequently left alone with the children in the fall of 1993. ER 36, 316. At that time, Robert Nachand was awaiting trial on charges that he sexually abused and sodomized his seven and threeyear-old nieces, to which he eventually pled. ER 36, 148. Although Cheryll Lee was aware of the charges pending against Nachand, she frequently left Matthew alone with him. ER 326. At no time was Richard Lee alone in the apartment with Matthew. ER 324. During the fall of 1993, Robert Nachand sexually abused Matthew. Although the State intimates that Matthew began throwing up and wetting the bed only after Lee is supposed to have abused the child (AOB at 7), these symptoms coincided with the abuse by Nachand. The symptoms began in October and stopped in late December when Matthew no longer went to Cheryll’s apartment. ER 37, 390. The State omits the fact that Matthew spontaneously reported the abuse by Nachand and provided consistent descriptions of that abuse. ER 133-35. According to the police report, in late February 1994, Matthew told his mother about abuse by Nachand while she and a friend were discussing a television program they had just

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watched about child sex abuse. ER 37, 134-35.1 He told his mother that Nachand played and bit his penis, and that Robert let him play Nintendo after Matthew played with Nachand’s penis ER 135. Matthew did not disclose any other abuse to his mother. ER 38, 135. During the police interview, Matthew described in great detail the abuse by Nachand. Without the use of anatomical dolls, Matthew explained that “Robert takes my pants down and plays with my pee pee in the kitchen.” ER 133. When asked “how Robert played with his pee pee, Matthew cupped his right hand together then moved his hand up and down to imitate masturbation.” ER 133. Matthew said that the abuse took place when the babysitter was getting the mail with his sisters or running errands. ER 134. He said that “Robert pulls my pants down first and kisses my pee pee. Then I unzip his pants and pull them down and kiss his pee pee. Robert tells me to bite his pee pee softly. He kisses my pee pee softly too.” ER 134. The description of the abuse was consistent with what he had told his mother. Matthew did not disclose any other abuse:

The State incorrectly states that Matthew first reported the Nachand abuse in January 1994, and that the mother did not report the abuse to the police until March 1994 (AOB at 7 n. 4). This incorrect information apparently comes from the prosecutor’s affidavit in connection with the state’s notice of intent to offer hearsay in the trial of Robert Nachand. ER 168-71. 10

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As our conversation continued, Matthew gave no further disclosures of any other sexual abuse that occurred to him or his sisters. * * *

Matthew did not disclose [to his mother] any other abuse. ER 134, 135. Cheryll was also interviewed in March 1994. ER 141. She admitted knowing that Nachand had abused his nieces, denied knowing that he was prohibited from being around children, and made no mention of Mr. Lee. ER 141-42. In March 1994, Nachand pled guilty to two counts of sex abuse; a sodomy count was dismissed as part of the plea agreement. ER 175. He was sentenced to 28 months. ER 179. B. Matthew’s Father Initiated The Allegations Against Mr. Lee Months After The First Police Interview With Matthew.

Several months after Nachand was convicted, Matthew’s father, Dan Hendricks, spontaneously asked Matthew if Richard Lee had ever abused him, and Matthew replied that he did. ER 391. At the time, Mr. Lee apparently had had an altercation with Dan Hendrick’s friend and roommate, and the defense theorized that Dan Henricks intended to implicate Mr. Lee in some manner. ER 383. Over a twoweek period, Mr. Hendricks questioned Matthew about abuse by Lee, and only then reported the alleged abuse to the police. ER 392.

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The State suggests that Matthew spontaneously reported molestation by Lee to Cheryll. AOB at 6. The alleged report by Cheryll arose during the investigation of Lee, long after she made statements regarding Nachand that included nothing about Mr. Lee. ER 141-42. Cheryll initially stated that Mr. Lee had no contact with the child. ER 191. Only after she was threatened with prosecution did she say that Matthew told her that Lee had touched his pee-pee. ER 191-92. She claimed that she later confronted Lee, who said that any touching occurred inadvertently while wrestling. ER 193.2 The District Court assumed that touching occurred, but found that it was not proved to be sexual touching: Matthew’s conversation with Cheryll occurred months before Matthew discussed this incident with his father and Detective Fowler. This reduces the likelihood that Matthew’s statement to Cheryll was tainted by a faulty interview process or suggestions from Matthew’s father . . . . That touching could have been clothed or unclothed, purposeful or inadvertent . . . . Ultimately there is insufficient evidence that the touching was done intentionally and for the purpose of sexual gratification or arousal. ER 65-68.

Cheryll Lee reported that during the fall of 1993, she saw Larry Lee, Richard Lee’s brother and her former husband, wrestling with Matthew. ER 711. Larry Lee was at the time a convicted child sex offender. 12

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C.

The Police Officer Interviewed Matthew About The Abuse By Richard And Robert.

Matthew was subsequently interviewed by Detective Fowler in the presence of his father. ER 330. Detective Fowler did not record, either video or audio, the interviews, claiming “the protocol that I was adhering to” “discouraged” recording the interview. ER 345-46, 347-48. Officer Fowler had been a detective for only one year. ER 246. When asked where Richard had touched him, Matthew did not give a detailed description as he had during the interview regarding the abuse by Nachand; instead, he pointed to his groin and said “right there.” ER 187. The extent that the interview by Fowler involved abuse by Robert or Richard is not apparent in the State’s description of the interview. AOB 8. Detective Fowler’s deliberate choice not to record the interview was significant because, as the District Court noted, Fowler’s testimony evolved during the trial and there is no clear record of what Matthew said: During Fowler’s trial testimony, it initially appeared that the questions Fowler posed to Matthew – and the answers given by Matthew – concerned sexual contact only with Richard. After being confronted with his police report, Fowler acknowledged that some questions he posed to Matthew were phrased in terms of “Richard or Robert” or “Richard and Robert.” Some of Matthew’s answers to Fowler’s question[s] were likewise ambiguous.

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ER 50. Detective Fowler used three anatomically correct dolls – designated as the Matthew, the Richard, and the Robert dolls. ER 187. Fowler took photographs of Matthew positioning the dolls, which were later introduced in the state’s case in chief. ER 187. Detective Fowler questioned Matthew about both Mr. Lee and the abuse by Robert Nachand and posed questions such as “did Richard or Robert do this to you.” ER 350. The District Court voiced concerns about Fowler’s potential bias: “The testimony of Detective Fowler, both pretrial and at trial, uses terminology that suggests less than complete objectivity.” ER 64 n.4. Based on the interview with Detective Fowler, Mr. Lee was charged with two counts of sex abuse in the first degree and two counts of sodomy. D. As A Result Of The State’s Invocation Of Oregon’s Rape-Shield Law, The Petitioner Could Not Provide An Opening Statement And Could Not Cross-Examine Regarding The Nachand Abuse Until After Matthew Testified And Just Before The State Rested.

The defense theory of the case was that the crimes were committed by Nachand, not Mr. Lee. To that end, a month before trial, the defense moved in limine to admit evidence that the victim had been abused by Robert Nachand, alleging acts that were similar to the allegations made against Mr. Lee. ER 536-41. Counsel requested admission of the evidence under Oregon’s rape-shield law: (2) Notwithstanding any other provision of law, in a prosecution for a crime described in ORS 163.355 to ORS 163.427, or in a prosecution for an 14

attempt to commit such a crime, evidence of a victim’s past sexual behavior other than reputation or opinion evidence is also not admissible, unless such evidence other than reputation or opinion evidence is: ... (b) Is evidence that ... (C) Is otherwise constitutionally required to be admitted. OEC 412(2)(b)(C).3 The motion was necessary under Oregon’s rape-shield law because “sexual behavior” was defined to include both volitional and nonvolitional acts. State v. Wright, 97 Or.App. 401, 406, 776 F.2d 1294, 1297-98 (1989). Counsel made the motion under the Confrontation Clauses to United States Constitution, citing to Davis v. Alaska, 415 U.S. 308 (1974), and Latzer v. Abrams, 602 F.Supp. 1314 (D.C.NY 1985).4 In the offer of proof, the defense submitted that, during the police interview in which the victim was questioned about the abuse, the similarities of the allegations suggested that the victim confused the abuse by Nachand with Mr. Lee. ER 538. Specifically, the defense argued that “[i]t is critical to defendant’s case that he be able

The Oregon Evidence Code (OEC) is also referred as the Oregon Rules of Evidence (ORE). Latzer interpreted Davis to hold that prohibitions on any questions regarding the victim’s sexual history deprived the petitioner of his ability to challenge a critical element of the state’s case, the identity of the alleged perpetrator, in violation of his constitutional right to confrontation. 602 F. Supp. at 320. 15
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to call and cross-examine witnesses as to this evidence of mistaken identification. Such evidence is constitutionally required to be admitted so that defendant’s confrontation rights and his right to present exculpatory material will be protected.” ER 538. During a pre-trial hearing, counsel argued that the court should allow evidence tending to establish that the victim had been abused by Robert Nachand to support the defense of mistaken identification by the victim. ER 228-29. [O]ur position is that . . . this is certainly an avenue of cross-examination that we have to be able to explore. You know, was this child indeed abused by two different individuals? Did two different individuals actually abuse him, or was he repeatedly abused by the one individual, Mr. Nachand, who’s been convicted, and then mistakenly identified another individual as to also participating in some of that abuse? I just don’t see how we can cross-examine effectively without getting into that. Otherwise, you know, we would have to go to trial simply with the child saying it happened, and Mr. Lee denying it, without having a chance to really explore the – you know – the credibility of the witness, and to explore the underlying foundation of this as far a whether these are bonified [sic] accusations against Mr. Lee. ER 231. The prosecutor argued that the evidence of Nachand’s abuse was prior sexual conduct, and that none of the exceptions to OEC 412 applied to identity issues. The court heard evidence from Detective Fowler regarding the victim’s identification of Mr. Lee, testifying that Matthew did not confuse Mr. Lee and Nachand during the interview. ER 256. The court denied the motion, addressing only identification:

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Based upon the offer of proof and testimony, the facts relating to identification in the instant case are quite different from the facts in Latzer v. Abrams, 602 F.Supp. 1314 (1985) and other cases cited. For example, the victims in Latzer were introduced to the accused by an alias name at an unfamiliar place on a particular day. The next day the victims departed from the accused and the place where they met, and did not meet again. [T]he testimony establishes that both accused persons were known to the victim over a period of at least weeks, at a place familiar to the child victim. Further, a witness, Cheryll, can give evidence that Defendant [Lee] was in the presence of the victim at that place at the times alleged. Finally, Defendant has made statements to Cheryll, which according to her, reported statements tend to show that the victim and Defendant knew each other and that the relevant conduct did occur. This Court recognizes that the provisions of OEC 412 must give precedence to the Defendant’s right to cross examine on the issue of identification of the Defendant and possible faulty memory of the victim. However in this case, this Court finds the threshold proof is insufficient to establish that he Constitutional rights brought into play here. ER 551-52. The judge who ruled on the pretrial motion did not preside over the trial, and defense counsel did not renew its motion prior trial. E. Matthew Confused The Defendant With Robert Nachand, The Man Who Was Convicted Of Abusing Him.

In its opinion, the District Court cited extensively from the transcript of Matthew’s testimony. ER 40-48. At the outset of the direct examination of Matthew, the child was confused as to whether Robert or Richard abused him: “Do you know who this is, Matthew? What’s his name?” and Matthew answered: “Robert – I mean 17

Richard.” ER 290. The confusion continued because the prosecutor repeatedly asked Matthew questions about what “he” did without mentioning whether “he” was Robert or Richard. Matthew answered that “he” did not touch him with anything other than one hand, denying that any act of sodomy occurred: Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. When – when he touched you on those parts of the body, did you have your clothes on or off? Off. ... Did he have his clothes on or off? Yeah. Do you remember which was off? His shirt. His shirt. Anything else? No. Was [sic] his pants on? Yeah. When he touched you on the part of the body there that you circled, what did he touch you with? With his hand. With one hand or both hands? One hand. And did he touch you on your pee-pee with one hand? Yeah. And on your bottom with one hand? Yeah. All right. Did – did he touch you on your bottom with anything else but his hand? No. And did he touch you on your pee-pee with anything but his hand? No. Are you scared of him? No.

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ER 297-98. On cross-examination, counsel asked Matthew about his identification of Mr. Lee: Q. A. ... Q. A. Q. A. Q. A. Q. Okay, Matt. Now, this person Cheryll, she was your baby-sitter for a while? Yeah. And she had a friend – she had a friend named Robert? Yeah. And he lived there with her; is that right? Yeah. You’ve been asked some questions about being touched, you know, in places where you shouldn’t be touched, is that right? Yeah. Okay. And when Ms. Parker first asked you, you know, who this was that was sitting here, you said – do you remember you said “Robert – I mean, Richard”? Yeah. So you’re getting those two people mixed up, huh, Robert and Richard? Yeah. And these things that you’ve talked about, about being touched, that was by Robert? Yeah.

A. Q. A. Q. A.

ER 302-03. At that point, the prosecutor objected, and at the prosecutor’s suggestion, Matthew left the courtroom with his parents, and the jury was escorted from the courtroom. Defense counsel argued that the misidentification of Richard opened the door to questioning the child about Robert Nachand, and in any event, even under OEC 412, the questioning was proper. ER 303. The court stood by its OEC 412 ruling but allowed limited cross-examination as to “whether this defendant did these

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acts or whether it was someone else or no one else.” ER 306. Defense counsel was able to inquire regarding the particular incident: Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Now, these things that you’ve described . . . you said that’s Robert? Yeah. Now, you said he had his shirt off, is that right? Yeah. And – but he had his pants on? Yeah. When he had his shirt off, did you – you know, did you notice anything about his body? No. Did you see anything on his arms or his stomach or anything? No. No. Nothing? Nothing you can tell us about? No. And what – so he had – Robert had his shirt off. Was that in the kitchen? I don’t know where.

ER 308-09. On redirect, Matthew identified the defendant as Richard and stated that he was the person who abused him. ER 309. On recross, Matthew denied saying that Robert abused him earlier and said that he spoke with his parents when he had left the courtroom earlier. ER 310. F. The State’s Evidence Of Sodomy Was Admitted Through Hearsay Statements Attributed To The Child.

Detective Fowler’s testimony was not limited to the “Richard/Robert confusion” as the State suggests. AOB at 11. Rather, Fowler testified with no objection as to what Matthew had shown him using the three anatomically correct 20

dolls and what Matthew had told him, including that Matthew indicated that the adult and child dolls had all of their clothes off. ER 335-39. With no objection, he also testified that Matthew placed the adult doll’s mouth to the child doll’s penis. Q. A. ... Q. ... A. What, if anything, did Matthew tell you then? Matthew told me that Richard also touched his, Matthew’s bottom, with his, Richard’s, mouth. Did Matthew make any other statements to you at that time? He told me that Richard had put his pee-pee in Matthew’s mouth. . . . He told me that Richard had rubbed his, meaning Richard’s, pee-pee on Matthew’s bottom.

ER 337-39. Fowler also testified that Matthew told him that “when the sexual touching was going on that ‘water came out’ . . . from Richard’s pee-pee.” ER 339. He also said that Matthew said that Richard “had rubbed his bottom with a cup, and also talked of a toy.” ER 339. Fowler said that “there was some confusion when discussing the number of times” the abuse took place. ER 341. On cross-examination, Fowler acknowledged that his questioning of Matthew involved both Robert and Richard: Q. A. Q. A. Q. And then – I think your testimony is then he said at one point that water came out. Water came out; is that right? That was in response to a question by me, words to the effect of, “when these things happened, did anything happen to Richard’s pee-pee?” Richard’s pee-pee or Robert’s pee-pee? Correct. Correct. 21

A. Q. A. Q.

Yes. Robert’s pee-pee? Richard or Robert’s. So you were asking questions about both of those men?

ER 350. The prosecutor objected on the grounds that the questioning went beyond the scope of direct examination and that it pertained to past sexual behavior. Citing to state law, the prosecutor argued that prior sexual conduct included both volitional and nonvolitional conduct, so the abuse by Nachand was inadmissible under Oregon’s rape-shield laws. Defense counsel countered: Well, your honor, I mean, [the prosecutor] may be threading the needle, but the trouble is, is then it puts us in a real bind in terms of crossexamination. As I understand it, what happened when Detective Fowler went through this interview with CSD with the dolls is, not only had – did he have the boy demonstrate what which was alleged – what was alleged to have happened between the boy and Richard Lee, but he also had him demonstrate what happened between the boy and Robert Nachand, the other individual that was prosecuted, at the same time during the same interview. And after these demonstrations were made with the dolls for both individuals, as I understand it, he asked him if anything happened to Richard or Robert’s pee-pees, and he said, “Water came out.” How am I supposed to know if that’s Richard or Robert, or both of them. And I think I have to be allowed to ask that in cross-examination. ER 352-353. Counsel further argued that Fowler’s testimony attributing all acts to Mr. Lee was inconsistent with his report indicating that Matthew was questioned about abuse by either Nachand or the defendant, and that he should be allowed to

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cross-examine the witness. ER 356. Although the court did not overrule the initial OEC 412 ruling, the judge did allow for limited questioning about Nachand: Well, given the circumstances in that it was an interview involving, apparently, the questioning about two people, and limited to the scope, I’m not going to tip this 412 ruling. But it seems to me that as to this particular interview, there could be an issue as to this victim being confused, not prior sexual conduct per se, but as to this particular interview, saying Richard when he meant Robert or vice versa. ER 356-57 (emphasis added). Fowler testified, over the State’s objection, that a Robert doll was included in the interview, that Matthew showed oral sex with the Robert doll, and that Matthew was questioned about touching by Robert or Richard. ER 360-61. The full details of the abuse by Nachand were never presented to the jury by Fowler, who testified: “But I can’t testify much to the Robert Nachand case because I didn’t investigate it. And I’m – I haven’t done anything more than briefly review the reports.” ER 259, 366-67. Only when the prosecutor decided to ask on redirect did Fowler say that he knew that Nachand had been convicted of abusing – not sodomizing – Matthew. ER 364. G. Other State Witnesses Provided No Evidence Of Sodomy.

Cheryll testified that, when she left the apartment while Matthew and his sisters were there, Robert Nachand was regularly left alone with them. ER 324. She testified that Mr. Lee occasionally visited and that Robert was there also. ER 324.

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She stated that, after she left Matthew alone with Robert and Richard, Matthew told her that Richard touched his pee-pee. ER 325. She also said she accepted Richard Lee’s explanation of the touching as occurring while he and Matthew were wrestling. ER 327. Defense counsel did not cross-examine regarding her initial statements regarding Nachand that mentioned nothing about Mr. Lee, or the initial statement regarding Mr. Lee in which she denied he was at the house with Matthew, or the threat of prosecution that preceded her statement regarding Mr. Lee. ER 322-27. The prosecutor elicited testimony from Detective Strong that, during his interview with Richard Lee, Mr. Lee emphatically denied committing any abuse. ER 376. Mr. Lee told Detective Strong that he visited his ex-sister-in-law about once a week, usually with his brother Larry Lee, or ex-brother-in-law, and would not be able to recognize Matthew. ER 373-74. Mr. Lee said that his brother looked exactly like him, except he had a receding hairline. ER 375. The only witness called by the defense was the child’s father: a decision the District Court found “was not trial strategy. It was a blunder.” ER 78. When counsel initially asked about the abuse by Nachand, Hendricks testified that Matthew had described the abuse by Nachand to include oral sex. ER 384. Defense counsel then questioned him about Matthew’s statements regarding abuse by Mr. Lee, eliciting a

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claim that Matthew told Mr. Hendricks, “Yes, Daddy, he stuck it up inside me.” ER 385. Hendricks stated that he never took Matthew to see a doctor. ER 386. On cross-examination, Hendricks testified that Matthew had nightmares and began wetting the bed during the period Cheryll Lee babysat at her home, but that behavior stopped when Cheryll began babysitting at his house. ER 388. Hendricks described how Matthew came to implicate Richard Lee: He told me that at one point in time that him and Richard had sex. I should say Robert and him both had sex with him together at one point in time is what he had said. He told me that he had had oral sex – or my son performed oral sex on the defendant . . . . . . . And then he said that he had been sodomized by him. ER 392. On re-direct, Hendricks was unclear as to why he thought to question Matthew about sexual abuse by Richard Lee. ER 395. Although Mr. Lee did not testify, he did show the jury his arms to rebut the testimony of Matthew that his abuser did not have any marks on his body: Why don’t you just roll up that one – first the left, the left arm. The sleeve is being rolled up to show, just for the record, a tattoo of a knife on the left hand – the left arm, I mean. I don’t know if everybody can see that, but there’s another tattoo on the right shoulder. ER 399. The only other evidence introduced by the defense was Nachand’s

conviction for sex abuse. ER 400.

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H.

Despite Trial Counsel’s Letter To Appellate Counsel Regarding Meritorious Appellate Issues, Appellate Counsel Filed No Direct Appeal, Claiming He Found No Non-Frivolous Issues.

The State Public Defender’s Office was appointed to represent Mr. Lee on direct appeal. On July 19, 1995, trial counsel wrote to Mr. Lee’s appellate counsel, with suggestions for potential appeal issues: We believe that this was a case in which the boy had been pressed by his father and therefore claimed that there was [sic] two perpetrators instead of only one. We filed a Rule 412 motion, which was denied. I enclose a copy of our motion, the judge’s letter ruling, and the order of denial. Because of the denial of our 412 motion, we were very hampered in presenting our case at trial. We could not push our basic defense. Ultimately, based upon the boy’s testimony, it appeared that the door was opening and we attempted to get the necessary evidence before the jury. As you will see in the transcript, eventually the prosecutor, at the very end of the State’s case, simply opened the door. However, by this time, the case had already developed substantially and we were unable to bring the full impact of the evidence to the jury. Therefore, I believe that the judge’s initial denial of our 412 motion severely restricted our ability to effectively try this case. ER 182. Counsel also enclosed the State’s notice of intent to introduce Matthew’s hearsay statements. ER 183. Despite significant constitutional issues and the lengthy sentence, appellate counsel raised no issues, instead filing a brief under State v. Balfour, 311 Or. 434, 814 P.2d 1069 (1991), indicating a lack of nonfrivolous issues. ER 485.5 Mr. Lee A Balfour brief is the Oregon version of Anders v. California, 386 U.S. 738 (1967), except it lacks procedural protections of withdrawal of counsel and record 26
5

did not file a Part B submission, which is the provision for pro se argument. On June 19, 1996, the conviction was affirmed without opinion. ER 102. Mr. Lee did not file a petition for review to the Oregon Supreme Court. I. Mr. Lee Filed A Timely Petition For Post-Conviction Relief.

Mr. Lee’s petition for post-conviction relief was filed within the time allowed under Oregon law. Pursuant to Or. Rev. Stat. 138.510 (3), a post-conviction petition is timely if filed within two years of when the appeal became final. In this case, the appellate judgment issued on September 30, 1996, and the petition for postconviction relief was filed on February 23, 1998. In his post-conviction petition, Mr. Lee alleged that his Sixth and Fourteenth Amendment rights to the adequate assistance of counsel were violated in a number of respects, including that counsel failed to adequately investigate, to object to the introduction of certain evidence, to call an expert in the reliability of child testimony, and that he inadequately cross-examined witnesses, called a witness who was prejudicial to the defense, failed to move for a mistrial or judgment of acquittal, and did not adequately object to the denial of the OEC 412 motion. ER 495. Mr. Lee also claimed ineffective assistance of appellate counsel for failing to raise both preserved and plain error on appeal. ER 496-97. In support, Mr. Lee submitted a postreview by the appellate court. 27

conviction trial memorandum, focusing on the ineffective assistance of appellate counsel for failing to raise the OEC 412 issue. ER 512. In response, the State provided declarations from both trial and appellate counsel. Trial counsel said that he did not feel the child was credible, but, because of the OEC 412 ruling, “We were not in a position to push our defense.” ER 586. Trial counsel described his investigative efforts, none of which included consultation with a child abuse expert. ER 586-87. Appellate counsel explained his reason for not assigning error to the court’s denial of the OEC 412 motion, but failed to identify the confrontation violations: Although the trial court denied the pretrial OEC 412 motion regarding the evidence of Robert Nachand, the door was later opened to this evidence. A defense witness also offered evidence about Nachand. Nachand’s conviction record was a defense exhibit. After reviewing the transcript, I discussed the case with at least one other attorney in my office. We believed I could not assign error to the denial of the pretrial motion, even if the denial was improper because the evidence was later received. I filed a Balfour brief because it was my opinion that there were no meritorious appellate issues in the case. ER 599. Mr. Lee was deposed, commenting that he had asked trial counsel to withdraw on several occasions because he was concerned that trial counsel was not preparing for the case adequately. ER 555.

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Following trial, the trial court made findings of fact and entered an order denying relief. ER 658-60. The post-conviction trial court made the following conclusions of law: Counsel’s effort to admit evidence at issue in the OEC 412 hearing were more than adequate to satisfy requirements for adequate assistance of counsel under the Oregon State Constitution and the United States Constitution. In the direct appeal from the underlying criminal proceedings resulting in petitioner’s conviction, petitioner was not denied the right to assistance of counsel, as guaranteed by either the United States Constitution or the Constitution of the State of Oregon. Petitioner was not prejudiced by the court’s initial ruling excluding evidence at issue in the OEC 412 motion because the evidence was eventually admitted at petitioner’s trial. Petitioner’s claims of trial court error are barred by Palmer v. State of Oregon, 318 Or. 352 (1994), Lerch v. Cupp, 9 Or.App. 508 (1972), and Hunter v. Maass, 106 Or.App. 438 (1991). ER 660-61. Mr. Lee appealed, raising as error the post-conviction court’s findings of fact and conclusions of law. ER 604. The court of appeals affirmed without opinion. ER 672. The Supreme Court denied the petition for review on August 7, 2001. ER 673.

29

J.

Mr. Lee Submitted Reliable New Evidence That His Federal Petition, If Held To Be Untimely, Should Be Reviewed On The Merits Under Schlup.

On March 11, 2002, Mr. Lee filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 alleging four grounds for relief from those convictions based on the violation of the federal Constitution during his trial and appeal. ER 85.6 First, the petition alleged ineffective assistance of trial counsel, in “violation of the 6th Amenment [sic] to the U.S. Constitution,” with four different ways in which trial counsel failed him. ER 88. Second, again in violation of the Sixth Amendment, Mr. Lee alleged ineffective assistance of appellate counsel, providing as supporting facts counsel’s failure to effectively present and preserve an appellate issue and submission of a Balfour brief “in violation of the 6th and 14th Amendments to the United States Constitution.” ER 88. In Ground 3, Mr. Lee alleged due process violations of the Fourteenth Amendment, listing three different factual bases for the allegations. ER 89. Lastly, Mr. Lee alleged in a single ground actual innocence and insufficiency of the evidence, in violation of the Fourteenth Amendment, based on the lack of

Given the denial of the petition for review on August 7, 2001, and the filing of the federal petition a little over seven months later, on March 11, 2002, the State’s claim that the federal petition was filed more than “five years after the state-court conviction became final” is unsupported by the record. AOB 2 (emphasis in original). 30

6

evidence against him and his consistent claims of innocence “throughout the legal processes against him.” ER 89. In response to the State’s assertions that the federal petition was untimely, Mr. Lee argued that the statute of limitations should be tolled: the statute of limitation should be waived because he made a sufficient showing of actual innocence to excuse the procedural bar under Schlup v. Delo, 513 U.S. 298 (1995), and the statute of limitations should be equitably tolled because, consistent with the federal statute, the Oregon two-year statute of limitations for post-conviction should not create a trap for petitioners who eventually seek federal habeas relief. SER 61-66.7 The District Court summarized the new evidence of actual innocence as follows: (1) expert testimony by Maggie Bruck on reliability of child witnesses, how interviewing techniques may affect reliability, and her expert evaluation of the procedures utilized in questioning Matthew, (2) extensive information about Robert Nachand’s molestation of Matthew and other children, including a police report stating in detail what Matthew told Detective Carter in March 1994 and the circumstances when Matthew first told his mother about being molested, (3) additional details about the police investigation of Richard Lee, Finding the Schlup standard had been met, the District Court did not reach the second issue, nor whether Ferguson v. Palmateer, 321 F.3d 820 (9th Cir. 2003), rejecting a suspension of the writ argument, controlled whether equitable tolling is available where state and federal law creates a trap. ER 58. 31
7

(4) information about Larry Lee, including photographs, whether he had tattoos, his molestation of a child, and whether Larry Lee had access to Matthew at certain times, and (5) an affidavit from Cheryll Lewis. ER 60-61. In support of his initial Schlup showing, Mr. Lee submitted three academic papers as a proffer of how a child abuse expert would have assisted the defense at trial. SER 69, 104, 144. He stated that he would call witnesses who would challenge the reliability of the victim. SER 65. At the hearing before the magistrate judge on January 15, 2008, Mr. Lee offered to supplement the record with testimony of an expert. SER 190-91. After the District Court granted the request for a Schlup hearing, Mr. Lee submitted the declaration of Dr. Maggie Bruck, Professor in the Division of Child and Adolescent Psychiatry, at John Hopkins University, Baltimore, Maryland, a highly qualified psychiatric expert. ER 677.8 Dr. Bruck reviewed the trial transcript, the police reports, and additional information relating to Daniel Hendricks’ conviction for criminal mistreatment in the first degree for abusing his children, including a conviction for abuse occurring at the time of Mr. Lee’s trial. The scientific findings relied on by Dr. Bruck in her assessment of this case include: Dr. Bruck is the coauthor of Jeopardy in the Courtroom: A Scientific Analysis of Children’s Testimony, American Psychological Association: Washington, D.C. (1995). Her curricula vitae is provided at ER 693. 32
8

• •

Young children report abuse fairly accurately. The first interview with a child provides the most reliable account. When a biased interviewer – one who has a preconceived idea of what happened – questions a child and the interview contains suggestive elements such as use of leading questions and inappropriate use of props, there is a high degree of risk that these circumstances can taint the child’s report, rendering it unreliable. Children who make false allegations as a result of suggestive interviews are not lying. In order to obtain information about the degree of bias and suggestiveness of interviews, it is crucial to obtain electronic recordings of the full interview.

ER 678-87. Based on her review of the material, Dr. Bruck concluded that Matthew’s statements are not reliable, explaining in detail the scientific bases for her opinions and providing a detailed analysis of the application of those findings to the facts of this case. ER 682-90. Mr. Lee also submitted new reliable evidence that Matthew may have mistaken Richard Lee for his brother Larry Lee. ER 197. He submitted photographs of Larry Lee demonstrating the resemblance between the two brothers. ER 208-10. Prior to the Schlup hearing, he also submitted an affidavit from Cheryll Lee, Larry’s ex-wife, attesting that she saw Larry Lee wrestling with Matthew during the relevant time. ER 711. 33

K.

The State Offered Evidence To Rebut Mr. Lee’s Claim Of Actual Innocence.

Prior to the hearing, the State offered three items of evidence: an affidavit from Larry Lee attaching a letter Mr. Lee had sent him; an affidavit from Matthew, now an adult; and a police report of a polygraph given to Richard Lee. ER 726-747. No expert testimony or witnesses were proffered. The affidavit from Matthew stated: I have reviewed the police report related to Richard Lee’s crimes committed against me. I also have reviewed my own trial testimony and the trial testimony of the Detective John Fowler that was given in State of Oregon v. Richard Robert Lee, Linn County Circuit Court Case No. 94071507. I agree with the statements and information contained in these documents. I was sexually abused by Richard Robert Lee. I was not sexually abused by Larry Gary Lee. ER 746-47. The petitioner moved to strike the polygraph report based on its inadmissibility generally, and because the State had taken an inconsistent litigation position in Smith v. Baldwin, 510 F.3d 1127, 1148 (9th Cir. 2007) (en banc), successfully arguing that polygraph results do not qualify as material evidence. SER 220. The State claimed that polygraph evidence was admissible in federal habeas proceedings. SER 227. The District Court ruled that, “[W]hile it’s legally inadmissible in court, I don’t think it is helpful to this situation, so I will allow petitioner’s motion to strike that.” ER 750. 34

The State moved to exclude Dr. Bruck’s testimony as irrelevant and beyond the scope of an actual innocence evidentiary hearing. SER 223. The petitioner cited to the controlling caselaw supporting expert testimony and the strong need in this case: Dr. Bruck sets out scientific principles established through testing, then applies those principles to the specifics of this case. These principles go to the heart of the unreliability of the claims against the petitioner. For example, Officer Fowler testifies that standard operating procedures “discouraged” videotaping of interviews, although expert testimony provides the reasoning for a strong preference for videotaping of interviews; while the officer testified at length regarding the use of anatomical dolls as an appropriate tool, the scientific evidence is that anatomical dolls are not appropriate where the child had been previously abused; the officer testified to questioning regarding both individuals, with no indication of the scientific basis for unreliability from such a practice. Dr. Bruck applied scientific findings in her declaration regarding the reliability of the government’s case. SER 233. The District Court denied the State’s motion. ER 750. During the hearing on actual innocence, the State cross-examined Dr. Bruck, challenging both her potential bias as a paid expert primarily for the defense, and the assumptions upon which her opinions were based. ER 757-764, 767-773. Although the District Court interrupted counsel several times, the District Court repeatedly invited the State to question Dr. Bruck about why an expert should have been called at trial, which would reflect whether the expert would be useful regarding reliability: “You can ask her questions concerning those issues.” ER 761. The Court allowed the State to continue its questioning regarding the assumptions underlying Dr. 35

Bruck’s opinion: “You can ask a few questions. Let’s try to make it as brief as possible.” ER 761. The District Court again asked the State, “Any further

questions?” ER 767. After five pages of question and answers, the following colloquy occurred: The Court: [A]ny further questions you have of this witness? [State’s Attorney]: No. ER 772. After the District Court heard argument and stated no further delay was appropriate, the State requested more time to “track down the victim as well as to respond to the expert’s report.” ER 789. After the District Court ruled, the State attorney said, “I’ve already requested more time to bring him [Matthew] here, I can certainly produce an affidavit to the existence of sodomy.” ER 798. The District Court stated he “read and studied” Matthew’s affidavit, which adopted the sodomy statements: “I put no emphasis on that at all, and I don’t think that would make any difference in any event on whether we pass the Schlup gateway.” ER 798. L. Following Its Finding That Mr. Lee Had Shown Actual Innocence, The District Court Granted The State’s Request To Brief The Merits.

The District Court ruled that the new reliable evidence of the Nachand abuse and the expert evidence presented by Dr. Bruck was sufficient to pass through the Schlup gateway: “The evidence there on those two issues that I’ve ruled on gets us

36

past the Schlup gateway.” ER 798-99. The District Court did not give consideration to the evidence regarding Larry Lee submitted by the petitioner. ER 788. After the Schlup ruling, the District Court invited counsel to argue the merits of the petition. The Court asked the parties to submit additional briefing on the exception to the hearsay rule over the noon recess. ER 802-03. Later, when the State indicated that it was not prepared to proceed on the merits, the District Court allowed the parties supplemental briefing. ER 814. The State filed its merits brief (SER 268), and attached an article by Dr. Kathleen Fuller for the proposition that the use of anatomical dolls in this case was not improper (ER 830). The State still offered no expert declaration. M. The District Court Granted Relief On The Merits.

On March 24, 2009, the District Court issued its opinion and order granting habeas relief. The District Court provided a detailed examination of the record, including extensive excerpts of Matthew’s trial testimony. ER 36-57. The District Court first adopted the Magistrate Judge’s determination that a showing of actual innocence could excuse any untimeliness of the petition, relying on O’Neal v. Lampert, 199 F.Supp.2d 1064, 1066-67 (D.Or. 2002). ER 58. Of the reliable new evidence submitted on the actual innocence question, including the evidence submitted by the State, the District Court found three to be significant to the issue of 37

actual innocence: the testimony of Dr Bruck, the extensive information about Robert Nachand, and additional details about the Lee investigation. ER 60-61. After examining the trial transcript, the Court found Matthew’s testimony contained significant ambiguities and confusion as to whether Robert or Richard abused him, attributable in part to the questions asked and to the possibility that he was coached. ER 61. The confused testimony was compounded by the exclusion of the newly presented Nachand evidence, evidence that the District Court found to be both essential to the defense and improperly excluded under the rape-shield laws: Evidence regarding Robert was not evidence of promiscuity by Matthew, or offered to show Matthew’s character or reputation or propensity to engage in sexual conduct, not was this evidence intended to embarrass him. This evidence also fell squarely within the “otherwise constitutionally required to be admitted” exception. Such evidence was crucial to the defense for many reasons, e.g., to explain how a five year old was familiar with these sexual acts, to provide alternative explanation for Matthew’s abrupt change of behavior, and to probe Matthew’s recollection regarding who molested him, when and how often, and what specific acts were performed by each actor. It was imperative that defense counsel be permitted to inquire into Matthew’s spontaneous report of molestation by Robert, and the details Matthew provided regarding those events. ER 62-63. The District Court noted that the jury eventually heard some evidence regarding Nachand, but concluded that, by the time it was admitted, the defense was still precluded from being able to cross-examine Matthew on why he “never

38

mentioned the molestation by Richard when providing Detective Carter a detailed account of very similar conduct involving Robert.” ER 63. The District Court also noted that, for much of Fowler’s testimony, the OEC 412 ruling prevented the defense from mentioning Nachand although Fowler questioned Matthew about Richard and Robert simultaneously, which added to the confusion. When the prosecution put Nachand in at the end of its case, Fowler was not able to provide details about Nachand because he lacked personal knowledge. ER 63. The District Court relied on Dr. Bruck’s testimony in evaluating Matthew’s trial testimony and the interview process. ER 64. The Court determined that the interview process coupled with the intermingling of Robert and Richard “cast serious doubt upon the reliability of the information obtained from Matthew on those occasions.” ER 64. The Court concluded that “[a] fully informed jury could not have too much confidence in the results of that process.” ER 64. The District Court then analyzed each of the charges. As to the sexual abuse charges, the court found that touching occurred, but that the prosecution never asked the questions necessary to infer intentional touching for the purpose of sexual arousal. ER 66. Matthew’s testimony contrasted with the interview he gave regarding the Nachand abuse filled with details about the molestation. ER 67. His testimony also contrasted with Fowler’s version, and Dan Hendricks offered yet another account. 39

ER 69. Based on this record, the District Court concluded that whether the touching was intentional was “little more than speculation” and accordingly “it is more likely than not that any reasonable juror would conclude that these charges have not been proven beyond a reasonable doubt.” ER 69. The District Court found: “The evidence in support of the sodomy convictions is weaker still.” ER 69. Although the prosecutor had Matthew identify Mr. Lee as the person who “did those things that you’ve drawn for us today,” the drawings only showed a hand touching him. ER 71. Matthew’s testimony explicitly disclaimed touching other than by hand and asserted that pants were on. ER 69. Fowler’s testimony did not dispel the confusion, and Dr. Bruck’s testimony would have persuaded the jury that there was not proof beyond a reasonable doubt regarding the sodomy charges. ER 71. The District Court concluded that “it is more likely than not that no reasonable juror . . . would lack reasonable doubt.” ER 71 (citing House v. Bell, 547 U.S. 518, 554 (2006)). Once through the Schlup gateway, the District Court found multiple constitutional violations, concluding: [B]ut for the deficient performance of trial and appellate counsel, Lee at least would have received a new trial based on the violations of the Confrontation Clause and other errors at trial. Had trial counsel consulted an expert, he also would have been better prepared to argue

40

the pretrial motion, and to establish a solid foundation for renewing that argument on appeal. Lee has established his claim for constitutionally ineffective assistance of counsel. He is entitled to a new trial on all counts. ER 81-82. Having granted relief on the Sixth Amendment violations, the District Court did not rule on Mr. Lee’s Jackson v. Virginia, 443 U.S. 307 (1979), insufficiency of the evidence claim.9 SUMMARY OF ARGUMENT The District Court granted habeas corpus relief based on a state trial and appeal rendered unreliable by pervasive and prejudicial violations of fundamental constitutional rights. The state charges were extremely serious: sexual abuse and sodomy of a four-year-old. The State successfully kept from the jury through most of the case that the child had been sexually abused and sodomized by a different person, Robert Nachand, over a long time period. The jury never heard that, in The State’s claim that the District Court decided the Jackson issue is not supported by the opinion, which suggests that the issue, to be decided under a different standard, need only be reached in the event of a decision to retry the case: Lee also argues that the evidence at trial was insufficient to convict him under the standard established in Jackson v. Virginia, 443 U.S. 307 (1979). The Jackson standard is more demanding than the Schlup standard. Whether the State should retry Lee after this many years is a different question than whether the State legally may. ER 82. 41
9

reporting the Nachand abuse, the child denied to the police and his mother that any other abuse occurred. The state proceedings against the petitioner were a

constitutional train wreck: • The trial court excluded evidence regarding sex abuse and sodomy by Nachand until the State narrowly opened the door at the end of its case that Nachand was convicted of sex abuse – and not sodomy – against the child; Where the only evidence of abuse was through the now-five-year-old’s statements, trial counsel failed to obtain a child abuse expert prior to and during trial to assist in litigating the rape shield issue, to prepare crossexamination of the officer who testified about using anatomically correct dolls and that video-recording interviews was a “discouraged” practice, and to explain suggestive influences and other indicia of unreliability regarding the child’s testimony; The officer testified without objection to hearsay from the child witness regarding acts of sodomy, which the child had disclaimed on the stand; Trial defense counsel committed the “blunder” of calling the child victim’s father and eliciting hearsay testimony regarding sodomy; Despite numerous constitutional violations apparent from the record, and despite a letter from trial counsel identifying the confrontation clause violation regarding the rape-shield ruling, appellate counsel refused to proceed with a brief on the merits, filing instead a statement of no nonfrivolous issues.

These and other violations occurred in the context of charges Mr. Lee consistently and vehemently denied, where there was no evidence corroborating the child’s statements.

42

The State only cursorily challenges the District Court’s findings of multiple constitutional violations during the state proceedings that necessitate a new trial. Instead, the bulk of the State’s appeal attacks the District Court for reaching the merits. Although the petitioner filed all his state proceedings in a timely manner, and although the petitioner filed for federal habeas corpus relief within seven months of the state proceedings becoming final, the State seeks to invoke the full array of procedural obstacles to avoid review of the substantial injustice that occurred during the state court proceedings. In doing so, the State has omitted relevant material from its statement of facts, procedural history, and legal analysis. First, the State claims that the expert testimony produced to demonstrate the unreliability of trial testimony cannot be used to establish actual innocence, omitting the detailed information from the Nachand investigation that also constitutes new evidence. This Court’s governing precedent fully supports the District Court’s consideration of expert testimony and its effects under the Schlup actual innocence standard. The District Court’s careful and detailed analysis of the new evidence easily meets the standard for passing through the Schlup gateway. Second, the State argues that, although actual innocence allows review notwithstanding procedural default, the AEDPA statute of limitations should bar constitutional claims regardless of actual innocence. As this Court has intimated, and 43

two Circuits have held, there is no reason to bar the courthouse doors where an actual innocence showing has been made, especially where the comity concerns regarding state defaults raise greater policy concerns than the federal non-jurisdictional statute of limitation. The State’s reading of the statute would raise serious constitutional concerns. In any event, given the timely filing of all state court proceedings, the filing in federal court within the one-year limitations period precludes application of a nonjurisdictional bar to reaching the merits. Third, the State complains about the procedure employed by the District Court in holding a hearing regarding actual innocence. The District Court operated well within the broad discretion covering conduct of this habeas proceeding. Although not required to provide anything beyond an affidavit of the expert, the District Court allowed the State to cross-examine the expert and, although asking the State’s attorney to stay on point, did not forbid any questions. The State’s claim that the District Court abused its discretion in striking a police officer’s report – with no statement of qualifications or underlying data – purporting to be a polygraph report, is untenable given the well-established law that such submissions are unreliable and inadmissible. The District Court accepted the declaration of the now-adult child witness, in addition to accepting the hearsay accounts and trial testimony of the child.

44

The only expert submission by the State supported the petitioner’s claims regarding improper use of anatomically correct dolls. Fourth, the State claims that the District Court should have ignored the new evidence of innocence in assessing the merits of the constitutional claims, citing 28 U.S.C. § 2254(e)(1). The Supreme Court rejected that position in House, stating: “[T]he standard of review in those provisions is inapplicable.” 547 U.S. at 539. The illogic of allowing review under Schlup based on the risk of substantial injustice, then turning a blind eye to evidence demonstrating the constitutional violation that contributed to the substantial injustice, forecloses the State’s position. The District Court meticulously surveyed the record and provided this Court with a detailed statement of facts that is complete and chronological. To those facts, the District Court applied governing Supreme Court and Ninth Circuit authority, none of which is seriously challenged by the State. The District Court recognized that a person who commits these types of acts against a small child deserves severe punishment. At the same time, the unreliability of the verdict, in the context of new evidence sufficient to pass the Schlup gateway, required that the State retry the petitioner or let him go. The decision of the District Court should be affirmed.

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ARGUMENT I. The District Court Correctly Found That New Evidence Within The Meaning Of Schlup v. Delo, 513 U.S. 298 (1995), Cast Sufficient Doubt On The Reliability Of The State Court Trial To Overcome Procedural Bars To Federal Review. The District Court correctly relied on governing Supreme Court and Ninth Circuit precedent regarding the standard for the Schlup gateway, which permits review of the constitutional merits despite potential procedural obstacles: To pass through that gateway, Lee must show that in light of all the evidence “it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt” Schlup, 513 U.S. at 327, 115 S.Ct. 851. See also id. at 328, 115 S.Ct. 851 (“the analysis must incorporate the understanding that proof beyond a reasonable doubt marks the legal boundary between guilt and innocence”) (footnote omitted). “Because a Schlup claim involves evidence the trial jury did not have before it, the inquiry requires the federal court to assess how reasonable jurors would react to the overall, newly supplemented record.” House v. Bell, 547 U.S. 518, 538, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006). The court is not bound by the rules of admissibility, but must consider “all the evidence, including that alleged to have been illegally admitted (but with due regard for the unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have come available only after the trial.” Schlup, 513 U.S. at 327, 115 S.Ct. 851. ER 59. The District Court articulated the type of evidence to be considered and the need to review new evidence: As a threshold matter, Lee also must “support his allegations of constitutional error with new reliable evidence – whether it be 46

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence – that was not presented at trial.” Id. at 324, 115 S.Ct. 851. “New” evidence does not necessarily mean newly discovered evidence. Also included is evidence available but not presented at trial, Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir. 2003), or improperly excluded at trial. See Sistrunk v. Armenakis, 292 F.3d 669, 673, n.4 (9th Cir. 2002) (en banc) (characterizing “previously excluded evidence” as “newly presented”). Whether an item constitutes reliable new evidence must be viewed in the context of the evidence as a whole. ER 60. From this correct statement of the applicable law, the District Court undertook an extensive review of the trial evidence, citing extensively from the child’s testimony (ER 36-55), then meticulously reviewing the newly presented evidence as to each count in light of the trial evidence. ER 60-71. The District Court concluded that, based on the total record, it is more likely than not that any reasonable juror would conclude that the charges had not been proven beyond a reasonable doubt. ER 69-71. “The court’s function is not to make an independent factual determination about what likely occurred, but rather to assess the likely impact of the evidence on reasonable jurors.” House, 547 U.S. at 538 (citing Schlup, 513 U.S. at 329). The court’s task is to evaluate all of the evidence, including its reliability, and assess how reasonable jurors would react. House, 547 U.S. at 538; Schlup, 513 U.S. at 327. This is exactly what the District Court did. The District Court concluded that, if the jury

47

been fully informed about the abuse by Nachand and the assessment of Dr. Bruck regarding the reliability of the evidence elicited at trial, it is more likely than not that no reasonable juror would lack reasonable doubt.10 A. The Nachand Material Provides Critical New Evidence That Establishes Mr. Lee’s Innocence.

The jury never heard about the initial Nachand investigation and the substantial exculpatory evidence it generated. A number of key facts would have created reasonable doubt, including: • The child had been subjected to sexual abuse and sodomy by Nachand between October 1 and mid-December 1993; In contrast to the vague and ambivalent testimony at trial, the child described detailed sexual acts by Nachand without resorting to dolls; The child initially reported no other sexual abuse other than by Nachand to either the police or his mother.

ER 131-35. The Nachand police report is not cumulative of evidence presented at trial, but rather adds an entirely new context in which the trial evidence should be evaluated. Without citation to the record or District Court opinion, the State makes the broad assertion that “[m]uch, if not most, of the district court’s oral ruling and opinion on innocence, vis-a-vis Bruck and Nachand, is simply its view of the merits of the claims.” AOB at 60 (emphasis in original). On the contrary, the District Court opinion bifurcated the analyses while following the Schlup requirement that the assessment be based on the evidence as a whole. 48
10

The report is analogous to the report found to be sufficient new evidence in House. In that case, greater details supporting the trial evidence that the murder victim had been abused by her husband, and was therefore more likely killed by her husband rather than the defendant, provided new evidence of innocence: At trial, as has been noted, the jury heard that roughly two weeks before the murder Mrs. Muncey’s brother received a frightened phone call from his sister indicating that she and Mr. Muncey had been fighting, that she was scared, and that she wanted to leave him. The jury also learned that the brother once saw Mr. Muncey “smac[k]” the victim. 7 Tr. 10871088. House now has produced evidence from multiple sources suggesting that Mr. Muncey regularly abused his wife. For example, one witness-Kathy Parker, a lifelong area resident who denied any animosity towards Mr. Muncey-recalled that Mrs. Muncey “was constantly with black eyes and busted mouth.” In addition Hazel Miller, who is Kathy Parker’s mother and a lifelong acquaintance of Mr. Muncey, testified at the habeas hearing that two or three months before the victim’s death Mr. Muncey came to Miller’s home and “tried to get my daughter [Parker] to go out with him,” (Parker had dated Mr. Muncey at age 14.) According to Miller, Muncey said “[h]e was upset with his wife, that they had had an argument and he said he was going to get rid of that woman one way or the other.” House, 547 U.S. at 548-49 (citations omitted). Although the fact that the victim was abused by her husband was presented to the jury, the Court considered the details of that abuse to be new reliable evidence that, when considered with other new reliable evidence, was sufficient to demonstrate actual innocence under Schlup: “we conclude that this is the rare case where – had the jury heard all the conflicting testimony – it

49

is more likely than not that no reasonable juror viewing the record as a whole would lack reasonable doubt.” House, 547 U.S. at 554. The Nachand police report and related documents provided new evidence in several important respects.11 The District Court considered the contrast between the detailed allegations of the abuse by Nachand in the police report against the vague and confusing report prepared by Fowler, who questioned the child about Robert and Richard simultaneously. The District Court concluded that the details of the abuse by Nachand would have had a significant impact on the jury because it would explain the child’s sexual awareness and his abrupt change of behavior. ER 62. The Court compared the scant evidence of sodomy provided at trial and the detail in the Nachand report. The State asserted that Matthew had oral contact with Richard’s penis, and vice versa, but Matthew denied any touching of that sort. ER 298. In contrast, Matthew described in detail the abuse by Nachand: The jury did not hear about the detailed account Matthew gave Detective Car[ter], on March 14, 1994, regarding the molestation by Robert. Matthew told Detective Carter “Robert pulls my pants down first and kisses my pee pee. Then I unzip his pants and pull them down and kiss his pee pee. Robert tells me to bite his pee pee softly. He kisses my pee pee softly too.” Matthew gave many other details regarding what Robert

The related documents included other police reports and a psychosexual report on Nachand that included an Axis I diagnosis of paraphilia and an extensive interview of Mr. Nachand that included no mention of Mr. Lee. ER 143-59. 50

11

did to him, whether Robert’s penis was erect, and if Robert was sitting or standing. ER 69-70. The newly presented Nachand evidence was also significant in assessing the child’s memory. Given the importance of the first report of abuse by a child, the statement of no other abuse given during the Nachand investigation utterly impeaches the alleged statement – months later, prompted by the father – implicating Mr. Lee. The Nachand report explicitly stated that no other abuse occurred: “Matthew gave no further disclosure of any other sexual abuse that occurred to him or his sisters.” ER 134. This critical fact was reinforced by Matthew’s mother, who also stated that Matthew reported no other abuse than by Nachand. ER 135. The Nachand police report was also essential to effectively cross-examine Matthew and Fowler, especially on the reliability of the allegations of abuse by Richard. ER 73-77. The District Court found: Detective Carter’s police report (which the jury never saw) reveals that Matthew provided many details about his molestation by Robert. This contrasts sharply with Matthew’s testimony about molestation by Richard. Detective Fowler’s report and testimony do not adequately address the details either, being largely conclusory and conflating Robert and Richard. ER 66-67. The State relies on Fowler’s conclusory testimony, Matthew’s ambiguous testimony, and the attorneys’ closing statements as evidence that the details of the 51

abuse by Nachand were presented to the jury. AOB 42-46. Notwithstanding that counsel statements are not evidence, the state prosecutor asked the jury to find that all descriptions of abuse related to abuse by Richard, not Robert. ER 420. Vague references to “him” and “they” during trial are not detailed descriptions of the abuse by Nachand. The newly presented Nachand evidence provided much more detail of the abuse and demonstrated Matthew’s ability to describe the abuse. Most

importantly, it showed Matthew’s denial of any other abuse when he was questioned about Nachand. The District Court correctly found that, if the jury heard the details of the Nachand abuse, along with the other new evidence, in the context of conflicting and confusing trial testimony, it is more likely than not that no reasonable juror viewing the record as a whole would lack reasonable doubt of Mr. Lee’s guilt. B. The Expert Opinion Of Dr. Bruck Provided Substantial New Evidence Of The Unreliability Of Statements Used At Trial.

Dr. Bruck established extraordinary credentials as an expert on factors relating to the reliability of child testimony. At the outset of her report, she carefully distinguished between factors relating to reliability as opposed to knowledge of what happened: Reliability refers to the trustworthiness of the evidence, not to the honesty or credibility of a witness. Statements or reports can be 52

unreliable due to normal processes of forgetting, of distortion, and of reconstruction. Statements can also be rendered unreliable if they are elicited in certain suggestive contexts. Thus, this report mainly focuses on factors that enhance or degrade the quality of children’s and adults’ reports. Although this report does not assess the credibility (believability) of the child’s statements of abuse, information concerning the reliability of the reports is crucial for the court and non-experts to draw conclusions about the credibility of the child’s allegations. ER 678. Throughout the Opening Brief, the Respondent fails to recognize this distinction and argues as if Dr. Bruck should have testified to the ultimate facts, not the reliability of the evidence. AOB 32-38. The Schlup inquiry is aimed at reliability: “[U]nder the gateway standard . . ., the newly presented evidence may indeed call into question the credibility of the witnesses presented at trial.” Schulp, 513 U.S. at 330; see Carriger v. Stewart, 132 F.3d 463, 478-79 (9th Cir. 1997) (“where post-conviction evidence casts doubt on the conviction by undercutting the reliability of the proof of guilt, but not by affirmatively proving innocence, that can be enough to pass through the Schlup gateway to allow consideration of otherwise barred claims.”); Sistrunk, 292 F.3d at 673; Gandarela v. Johnson, 286 F.3d 1080, 1086 (9th Cir. 2002). The expert testimony of Dr. Bruck established significant areas of unreliability not heard by the jury, including: • The relative reliability of an initial report, which in this case involved only Nachand and disclaimed other abuse; 53

The importance of and reasons for video recording interviews with child victims and the types of suggestion that go undetected without it; The problematic use of anatomical dolls with children with documented prior sexual abuse and ability to describe events without them.

ER 682-89. The report sets out in detail the scientific principles applicable to evaluating credibility and suggestiveness, then applies them to this case. ER 678-90. The State’s account of Dr. Bruck’s testimony is inaccurate and inconsistent with the District Court’s finding regarding its content and usefulness: The testimony of Maggie Bruck is helpful to the court, and would have been very helpful to a jury, in evaluating the interview process and Matthew’s trial testimony. Fowler’s use of anatomically correct dolls, exposing the genitals to Matthew, and other suggestive interviewing techniques – coupled with the intermingling of Robert and Richard – cast serious doubt upon the reliability of the information obtained from Matthew on those occasions. A fully informed jury could not have too much confidence in the results of that process. That does not mean it categorically is improper to use anatomically correct dolls or other interview techniques. Each case must be evaluated on its facts. ER 64 (footnote omitted). The State complains that, because Dr. Bruck expressed no opinion as to guilt or innocence, the testimony is nothing more than speculation. AOB 32 (citing Harris v. Vasquez, 949 F.2d 1497, 1516 (9th Cir. 1990); Griffin v. Johnson, 350 F.3d at 965). As she explained at the outset of her testimony, Dr.

54

Bruck’s evaluation addressed reliability of evidence presented at trial, which also demonstrated the importance of expert assistance at trial. A petitioner may pass through the Schlup gateway with evidence that significantly undermines or impeaches the credibility of witnesses presented at trial if all the evidence, including new evidence, makes it “more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Schlup, 513 U.S. at 327. In Calderon v. Thompson, the Supreme Court explained that, where there is little evidence of the crime apart from the testimony of the witnesses whose credibility is questioned, and the jury accepted the witnesses’ testimony at trial, then impeachment evidence may be sufficient to establish actual innocence. 523 U.S. 538, 562 (1998). The petitioner in Calderon was unable to meet this test because there was significant other evidence of guilt, and there was significant impeachment evidence introduced. Id. Here, in contrast, there is no other evidence of guilt except for the testimony of and statements attributed to Matthew. Dr. Bruck thoroughly analyzed the trial record and additional evidence regarding Nachand and Hendricks, concluding that the statements inculpating Mr. Lee were not reliable. ER 689. The trial testimony of the child did not establish sodomy, as the State agreed below. ER 792. Because the only evidence before the jury were Matthew’s statements, it is more likely than not 55

that the outcome of the trial would have been different had the jury heard Dr. Bruck’s expert testimony questioning the reliability of those statements. The State asserts that had Dr. Bruck’s testimony and report been presented to the jury, the State would have called an expert in rebuttal. AOB 84. The District Court correctly noted that the State’s duel-of-the-experts argument “misapprehended the nature of the testimony here.” ER 65 n. 5. In considering an actual innocence claim, the court evaluates what effect the newly presented reliable evidence would have had on a jury that heard the evidence at trial. Schlup, 513 U.S. at 330; Carriger, 132 F.3d at 481. The duel-of-experts argument would require the court to construct, and then analyze, a hypothetical trial, then reach a conclusion. The District Court sensibly rejected this argument. Further, despite abundant time, the State introduced no expert declaration contradicting or rebutting Dr. Bruck’s testimony. The testimony regarding reliability was unassailable: Fowler’s testimony that interviews should not be recorded is simply unsupported by any imaginable expert; the concern regarding suggestibility and the presence of the father during the interview is good clinical practice in anyone’s book; the only article submitted by the State supported Dr. Bruck’s view on using anatomical dolls with known sex abuse victims:

56

[M]ost studies find that children thought to have been sexually abused are significantly more likely to engage in sexualized behavior with anatomical dolls than comparison children. ER 834. None of the scientific bases for Dr. Bruck’s analysis was challenged. The State argues that the substance of Dr. Bruck’s testimony was presented to the jury by defense counsel in his closing argument. AOB at 37. Not only is argument not evidence, the prosecution argued enthusiastically that the procedures were reliable and that Nachand was merely a scapegoat. ER 222, 420. The District Court properly considered Dr. Bruck’s testimony and the potential impact it would have had on a fully informed jury. C. Other New Evidence Supported The District Court’s Finding Regarding The Schlup Gateway.

The District Court had other evidence demonstrating the unreliability of the jury’s verdict. For example, the jury did not hear that Cheryll Lee was questioned during the initial Nachand investigation and said nothing regarding Mr. Lee (ER 14142), then initially denied Mr. Lee was present while children were at her house (ER 191). She only implicated Mr. Lee, although not as having committed a crime, after being threatened with prosecution herself. ER 192. New evidence was also presented regarding Larry Lee, a brother who resembled Mr. Lee. ER 197-210. The details of his appearance, sex abuse

57

conviction, and presence at Cheryll’s house had not previously been considered. ER 208-10. Further, Cheryll stated that, at least on one occasion, Larry Lee had wrestled with Matthew. ER 711. The District Court did not rely on the Larry Lee evidence in light of a letter from Mr. Lee to his brother shortly before the hearing disclaiming belief the brother had abused Matthew. ER 726-31. The District Court also credited the statements of Cheryll Lee regarding Matthew’s statements regarding Mr. Lee. ER 49. II. Where The Petitioner Filed For State Post-Conviction Relief Within The Statutory Time Provided By State Law, And Filed For Federal Habeas Corpus Relief Well Within One Year From The State Proceedings Becoming Final, The Actual Innocence Showing Under Schlup Permits The Federal Court To Review The Constitutional Errors That Permeated The State Proceedings. The AEDPA’s statute of limitations is not jurisdictional. Roy v. Lampert, 465 F.3d 964 (9th Cir. 2006); accord Calderon v. United States District Court, 128 F.3d 1283, 1287-88 (9th Cir. 1997), overruled on other grounds by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc). The District Court properly found that it could consider the merits of Mr. Lee’s petition upon his Schlup showing of actual innocence. Schlup carved out an exception to procedural bars because they “‘must yield to the imperative of correcting a fundamentally unjust incarceration.’” House, 547

58

U.S. at 536 (quoting Schlup, 513 U.S. 298 (1995), and Murray v. Carrier, 477 U.S. 478, 495 (1986)). “Indeed, concern about the injustice that results from the conviction of an innocent person has long been at the core of our criminal justice system. That concern is reflected ... in the ‘fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.’” Schlup, 513 U.S. at 325 (quoting In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring)). The District Court and the Magistrate Judge correctly found that the Schlup gateway allowed consideration of the constitutional merits regardless of the AEDPA statute of limitations. Because the District Court reached the merits through actual innocence, the District Court did not address the petitioner’s alternative statutory construction and equitable tolling arguments. ER 58 n.3. A. Actual Innocence, Not The Type Of Procedural Bar, Governs Whether The Merits Are Reached.

Neither the Supreme Court nor the Ninth Circuit has specifically addressed whether actual innocence creates an exception to or otherwise tolls the AEDPA’s one-year limitations period. Majoy v. Roe, 296 F.3d 770 (9th Cir. 2002) (the question to be answered on remand “is whether surviving the rigors of [the Schlup] gateway has the consequence of overriding the AEDPA’s one-year statute of limitation, a legal question not yet decided by this Circuit or the Supreme Court”); see Johnson v.

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Knowles, 541 F.3d 933, 935 (9th Cir. 2008) (reaching merits of Schlup claim where actual innocence was asserted to address violation of the AEDPA’s statute of limitations). However, the Schlup gateway past the federal statute of limitations is consistent with both the principles underlying the AEDPA and those underlying the “miscarriage of justice” exception. In O’Neal v. Lampert, upon which the District Court relied, the court noted that time-barred and procedurally barred petitioners who can demonstrate actual innocence are similarly situated: When an innocent state prisoner’s violation of the federal habeas corpus statute of limitations is at issue, the federalism and comity interests are not nearly as strong as when a federal court must forgive an innocent prisoner’s procedural default of a state’s habeas corpus statute of limitations, [and] it is reasonable to provide the same protection to a state prisoner who procedurally defaults by failing to meet a state statute of limitations’ filing deadline as to a state prisoner who fails to meet the federal statute of limitations’ filing deadline. 199 F. Supp. 2d at 1066-67 (citing Kaufman v. United States, 394 U.S. 217, 228 (1969) (“there is no reason to ... give greater preclusive effect to procedural defaults by federal defendant than to similar defaults by state defendants. To hold otherwise would reflect an anomalous and erroneous view of federal-state relations.”)). The Second and Sixth Circuits have shared the O’Neal court’s view that “[b]ecause the interests that must be balanced in creating an exception to the statute

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of limitations are identical to those implicated in the procedural default context, we see no reason not to apply the Schlup standard in the tolling context.” Souter v. Jones, 395 F.3d 577, 588 -590 (6th Cir. 2005) (citing Doe v. Menefee, 391 F.3d 147, 175 (2nd Cir. 2004)). There is simply no reason to limit the miscarriage of justice exception to the type of procedural bar. The relevant criteria should be whether the petitioner made a showing of actual innocence. Since Mr. Lee made such a showing, the District Court properly considered the merits of his petition. B. Extending The Miscarriage of Justice Exception To The Statute Of Limitations Avoids Serious Constitutional Questions.

The failure to extend the miscarriage of justice exception to the statute of limitations would raise serious constitutional questions, as this Court observed in Majoy, 296 F.3d at 776 -777 (citing Triestman v. United States, 124 F.3d 361, 378-79 (2d Cir.1997) (observing in dicta that the procedural denial under AEDPA of collateral review to a party claiming actual innocence could raise serious constitutional problems); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.1998) (noting that if AEDPA’s statute of limitation prevented a petitioner who is actually innocent from filing a first federal habeas petition, AEDPA’s limitation period would “raise [] serious constitutional questions and possibly render[] the habeas remedy inadequate and ineffective”); In re Dorsainvil, 119 F.3d 245, 248 (3d Cir.1997) (observing that

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“[w]ere no other avenue of judicial review available for a party who claims that s/he is factually or legally innocent . . . we would be faced with a thorny constitutional issue”). In finding that a showing of actual innocence under Schlup allowed for consideration of a time-barred petition, the Sixth Circuit observed: Indeed, concern about the injustice that results from the conviction of an innocent person has long been at the core of our criminal justice system. That concern is reflected ... in the ‘fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.’ “ Schlup, 513 U.S. at 325 (quoting In re Winship, 397 U.S. 358, 372(1970) (Harlan, J., concurring)). In light of these grave constitutional concerns, we believe equitable tolling of the statute of limitations based on a credible showing of actual innocence is appropriate. Souter, 395 F.3d at 601-02. Procedurally barring the claim of an actually innocent person would reduce the scope of habeas corpus below the minimum protection that is constitutionally required, implicating the Suspension Clause, the Due Process Clause and, the Eighth Amendment. The AEDPA must therefore be construed to avoid such constitutional issues by permitting a decision on the merits. Clark v. Martinez, 543 U.S. 371, 380-81 (2005); Zadyvdas v. Davis, 533 U.S. 678, 690 (2001); INS v. St. Cyr, 533 U.S. 289, 299-300 (2001).

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C.

Reaching The Merits Upon A Showing Of Actual Innocence Under Schlup Is Consistent With The Statute.

While the AEDPA included an actual innocence exception to the procedural bars on successive habeas petitions and evidentiary hearings, 28 U.S.C. § 2244(b), there is no legitimate implication that the statute of limitations was intended to bar federal courts from reaching the constitutional merits where the Schlup gateway criteria were met. As an initial matter, the text of § 2254 does not mention actual innocence as excusing a procedural default, yet Schlup unquestionably applies in that situation. House, 547 U.S. at 537-38; see also Flanders v. Graves, 299 F.3d 974, 977 (8th Cir. 2002) (§ 2244(d)(1) “says nothing about actual innocence, even though other parts of AEDPA, enacted at the same time, do refer to this doctrine.”). Accordingly, the absence of an actual innocence provision in § 2244(d) is not determinative. At the time Congress enacted the AEDPA, the jurisprudential background included the Supreme Court’s decisions in Schlup and Murray v. Carrier, 477 U.S. 478 (1986), which provided an “actual innocence” gateway for hearing the merits of procedurally barred claims. In interpreting a statute, it is presumed that Congress legislates against the background of existing jurisprudence unless it specifically negates that jurisprudence. Young v. United States, 535 U.S. 43, 49-50 (2002).

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The Sixth Circuit directly addressed the role of Schlup as it relates to the AEDPA, and concluded that the statute adopted a narrower actual innocence standard in the successive-petition and evidentiary-hearing provisions, requiring a higher “clear and convincing” standard, but the AEDPA did not alter the general Schlup actual innocence standard applicable in cases involving other types of procedural bars. Souter, 395 F.3d at 589. The court noted that, even after the AEDPA, the Schlup actual innocence standard has continued to apply unless the case falls within one of the two statutorily-defined areas requiring the heightened standard. Souter, 395 F.3d at 599 (citing Williams v. Bagley, 380 F.3d 932, 973 (6th Cir.2004)). As the Sixth Circuit observed, the more lenient Schlup standard applies to § 2244(d): [T]he United States Supreme Court has continued to apply the more lenient Schlup standard in defining a miscarriage of justice in other circumstances, which reinforces the conclusion that Congress was not acting to alter the actual innocence standard beyond the two specific provisions in AEDPA. See Calderon v. Thompson, 523 U.S. 538, 558 (1998) (“It is true that the miscarriage of justice standard we adopt today is somewhat more lenient than the standard in § 2244(b)(2)(B).”). Souter, 395 F.3d at 590 n.5. Accordingly, the AEDPA cannot be read as precluding Schlup’s application except in the two narrow exceptions calling for a heightened standard. Rather, under the AEDPA, Schlup excuses defaulted claims and untimely petitions equally. The District Court’s ruling is fully supported by the statute and controlling caselaw. 64

D.

The Circuits Have Concluded That Schlup May Excuse An Untimely Petition With And Without A Showing Of Diligence.

The circuit courts of appeals allow for tolling of the limitations period based on actual innocence under certain circumstances, but with different approaches. In Souter, the Sixth Circuit found that, if a petitioner can demonstrate that it is more likely than not that no reasonable juror would have found him guilty, he should be allowed to pass through the “gateway” (provided by actual innocence) and argue the merits of his underlying constitutional claims. 395 F.3d at 590. Other courts of appeals, including this Circuit, have strongly suggested that Schlup will excuse an untimely petition, but have avoided deciding the timeliness issue by first requiring that the district court determine whether there is, in fact, a showing of actual innocence. Johnson v. Knowles, 541 F.3d at 935; Majoy, 296 F.3d at 777, Doe v. Menefee, 391 F.3d at 175. Other Circuits have considered the question in the context of equitable tolling to allow consideration of time-barred claims upon a showing of actual innocence. McCray v. Vasbinder, 499 F.3d 568, 571 (6th Cir.2007) (“One form of equitable tolling that we have recognized is a claim of ‘actual innocence.’”); Araujo v. Chandler, 435 F.3d 678, 681 (7th Cir.2005); Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.2000) (“Equitable tolling would be appropriate, for example, when a prisoner is actually innocent,” as long as the petitioner “diligently pursue[d] his

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federal habeas claims”). The First Circuit has not unequivocably rejected application of Schlup to excuse the statute of limitations as the State contends. David v. Hall, 318 F.3d 344, 347 (1st Cir.2000). Rather, the First Circuit held that there was no statutory exception for actual innocence, but did not reach the Schlup question. 318 F.3d at 347-48. The courts that have not agreed with the Second and Sixth Circuits have analyzed Schlup in the framework of equitable tolling, superimposing a diligence requirement in addition to the actual innocence showing. However, there are two flaws in this analysis.12 First, Schlup is an exception to any diligence requirement. Schlup, 513 U.S. at 326-27. “[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.” Murray v. Carrier, 477 U.S. at 496 (emphasis added). There is no reason to subject a time-barred petitioner to a higher standard than a petitioner who has procedurally defaulted his claims without cause.

The State overstates the holdings of the Circuits’ decisions. The First and Tenth Circuits discuss a diligence requirement, but have not precluded that actual innocence standing alone could excuse the statute of limitations. David, 318 F.3d at 348; Gibson, 232 F.3d at 808. The Fifth, Seventh, and Eighth Circuits have a diligence requirement. 66

12

Second, the doctrine of equitable tolling is grounded in principles of comity and finality, principles that must give way in the case of one who is actually innocent. Consequently, a petitioner seeking equitable tolling is subject to a different showing. After making the unusual showing under Schlup, no further obstacle to review makes sense. If the prisoner who makes a Schlup showing was fully capable and timely, there would be no need for either the Schlup gateway or, if no such showing could be made, the cause-and-prejudice analysis under Carrier. The equitable tolling inquiry is a far different standard than that required under Schlup. The high standard required for equitable tolling does not implicate a fundamental miscarriage of justice or actual innocence. Where such interests are at issue, the State’s interest are outweighed. Mr. Lee did not wait over five years to seek federal habeas relief, as the State contends.13 Rather, Mr. Lee pursued his state remedies diligently and within the time frames allowed by Oregon law. At the conclusion of the state post-conviction proceedings, he filed his federal petition within seven months. His reasonably diligent filing establishes that, given his showing of actual innocence, the District Court properly reached the constitutional merits. The State initially stated that Mr. Lee waited over five years, AOB at 2, then stated that he did not file “some four years after the state post-conviction courts could have.” AOB at 68. 67
13

The chronology of filing is caused not by a failure to diligently pursue his remedies, but rather due to the tension between the Oregon and federal statute of limitations. Unbeknownst to Mr. Lee and countless other prisoners who filed their state post-conviction petitions well within Oregon’s two-year period, the federal clock was running. Because he followed State law in waiting less than two years to file, the petitioner used up all the time in which to file the federal petition. Under basic due process principles, the petitioner cannot be compelled to waive statutory rights in order to invoke constitutionally protected rights. See Sherbert v. Verner, 374 U.S. 398, 404-05 (1963) (liberty interest may be infringed by the denial of or placing condition upon a benefit or privilege); accord Shapiro v. Thompson, 394 U.S. 612, 627 n.6 (1969). Mr. Lee should not have to choose to forego the State’s statute of limitations period in order to vindicate federal habeas corpus rights.14 III. The District Court Did Not Abuse Its Discretion In Its Conduct Of The Hearing Regarding Actual Innocence Under Schlup. The District Court has wide discretion regarding the taking evidence in a habeas corpus proceeding. Williams v. Woodford, 384 F.3d at 586; LaGrand v.

Mr. Lee preserves for potential en banc review the construction of the statute that allows the limitations trap. 68

14

Stewart, 133 F.3d 1253, 1270 (9th Cir. 1998).15 The habeas statute provides, “On application for a writ of habeas corpus, evidence may be taken orally or by deposition, or, in the discretion of the trial judge, by affidavit.” 28 U.S.C. § 2246. There is no requirement that an affiant be made available for live testimony or for cross-examination. The habeas court retains wide discretion to impose limitations on cross-examination. See Delaware v. Van Arsdall 475 U.S. 673, 679 (1986). In Schlup, the Court remanded the case for an actual innocence fact-finding inquiry due to the “District Court’s ability to take testimony from the few key witnesses if it deems that course advisable.” Schlup, 513 U.S. at 332 (emphasis added). The District Court conducted the hearing within its sound discretion. A. The State Had Ample Opportunity To Examine Dr. Bruck And Obtain An Expert.

The State complains that the District Court abused its discretion in limiting its cross-examination of Dr. Bruck (AOB at 20), but does not point to any question it

“Discovery and evidentiary determinations, including the determination to hold a hearing or not, are left to the district court’s sound discretion.” Kuenzel v. Allen, 488 F.3d 1341, 1344 (11th Cir. 2007); Beuke v. Houk, 537 F.3d 618, 653 (6th Cir. 2008) (explaining that “we have recognized that expansion of the record in habeas cases ‘is not mandatory... and is left to the discretion of the trial judge”) (quoting Ford v. Seabold, 841 F.2d 677, 691 (6th Cir. 1988)); Pike v. Guarino, 492 F.3d 61, 70 (1st Cir. 2007) (stating that “[t]he decision to hold the hearing and the scale and scope of it are subject to review for abuse of discretion”) (citing Crooker v. United States, 814 F.2d 75, 76 n.1 (1st Cir. 1987)). 69

15

asked that was not answered. Although the District Court interrupted counsel several times, when counsel explained that she intended to ask questions regarding some of Dr. Bruck’s assumptions in the report, the District Court allowed the State to proceed. ER 764. In response to the District Court request that the State’s questions be focused on whether an expert should have been called at trial – what type of evidence an expert could provide – the State continued to cross-examine Dr. Bruck. ER 76772. When the Court asked the State’s attorney if she had any other questions, she replied no. ER 772. On this record, the District Court’s conduct of the hearing was entirely proper, and no claim of error has been preserved. The District Court need not have held a hearing or allowed any crossexamination of Dr. Bruck. The District Court stated that the Schlup “inquiry requires the federal court to assess how reasonable jurors would react to the overall, newly supplemented record.” ER at 59 (citing House, 547 U.S. at 538). Having submitted a declaration, the petitioner did not need to make Dr. Bruck available for crossexamination, but, nonetheless, stated during the hearing that Dr. Bruck was available to answer any questions regarding her report. ER 751. The habeas rules provide that parties have the right to propound written interrogatories to the affiants, or to file answering affidavits. 28 U.S.C. § 2246. The State did neither.

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The State reports that it did not receive a copy of Dr. Bruck’s testimony until a week before the hearing. AOB at 52. The State had abundant time to prepare for the hearing, especially in light of the petitioner’s statements on January 15, 2008, that an expert would be provided at a hearing. SER 195, 198. Further, because the State raised no timely and specific objection, the District Court had no reason to hear the parties regarding any off-the-record notice provided earlier to the State. The trial judge has broad discretion regarding cross-examination and extensions of time. The District Court placed the affiant under oath and, after Dr. Bruck adopted her report as indirect examination, permitted cross-examination. The District Court not only did not abuse its discretion, the State waived any objection based on cross-examination by stating it had no further questions after being permitted to ask questions. The State had abundant opportunity to file an expert declaration and, with no statement of reason, chose not to do so, even when – following the initial hearing – the District Court allowed an additional twenty days for briefing and set a second hearing six weeks from the date the petitioner filed his trial memorandum. The District Court acted well within its discretion and did not abuse its discretion.

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B.

The District Court Correctly Struck The Interrogating Officer’s Report Opining Regarding Credibility.

A few days before the District Court hearing, the State submitted a document that purported to be a polygraph report – with no charts or qualifications of the examiner – in which the petitioner repeatedly and emphatically denied guilt. ER 734. The District Court read the report and granted the motion to strike. In Smith v. Baldwin, the State successfully argued during an actual innocence inquiry that polygraph results, even where the results were a condition of a co-defendant’s plea deal, were “inadmissible in Oregon courts” and “do not even qualify as ‘evidence’ for Brady purposes, let alone ‘material evidence.’” 510 F.3d at 1148 (citing Wood v. Bartholomew, 516 U.S. 1, 6 (1995)); accord Cooper v. Brown, 510 F.3d 870, 945 (9th Cir. 2007) (“[A] polygraph test is inadmissible to show that person’s veracity”). “[T]here is simply no consensus that polygraph evidence is reliable. To this day, the scientific community remains extremely polarized about the reliability of polygraph techniques.” Goel v. Gonzalez, 490 F.3d 735, 739 (9th Cir. 2007) (quoting United States v. Scheffer, 523 U.S. 303, 309 (1998)). See also United States v. Benavidez-Benavidez, 217 F.3d 720, 724 (9th Cir. 2000) (stating that “district courts are free to reject the admission of polygraph evidence on the basis of any applicable rule of evidence,” even after a Daubert hearing suggests reliability).

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Here, the State provided no qualifications, no charts, and no basis for a determination of reliability. The State’s position appears to be that any inadmissible evidence must be considered. Although cases allow for consideration of suppressed evidence, the language of those opinions does not extend to unreliable material. Schlup, 513 U.S. at 328. Under the State’s theory, the officer’s reliance on a Magic Eight Ball would have to be admitted.16 The District Court quite properly struck the improperly submitted exhibit. ER 750. In light of the unequivocal Ninth Circuit precedent, the State has no basis to claim the District Court abused its discretion in striking the exhibit. C. The District Court Correctly Considered The Testimony Of NowAdult Child Victim By Declaration.

The State’s complains that the District Court should have received information in addition to the adult Matthew’s affidavit. AOB 58. The District Court thoroughly considered Matthew’s contemporaneously reported statements and trial testimony. In addition, he received and considered a declaration by the adult Matthew adopting the police reports and testimony.

In a footnote, the State claims the balance of the exhibit should have been admitted. AOB at 58 n. 17. Not only did the State fail to assert this position before the District Court, the “balance of the exhibit” formed the only basis for Detective Strong’s trial testimony. Compare ER 737 (report of August 30, 1994, interview) with ER 373-77 (relating interview of August 30, 1994). 73

16

Matthew’s trial testimony was significantly different than the interview reported by Fowler and, for that matter, by the father. At trial, Matthew reported only that someone touched him with his hand, and that he never saw Richard without his clothes on, while Fowler reported genital contact. Compare ER 298, 308, with ER 338-39. These inconsistent statements cannot be both true. And, as the District Court noted, Matthew’s trial testimony was fraught with ambiguities and inconsistent answers.17 Further delay was inappropriate. The District Court acted well within its broad discretion in considering the additional information from the now-adult child by affidavit. IV. Where The Trial Judge Found That The State Court Did Not Have Or Consider Basic Information Necessary To Evaluate The Ineffectiveness Of State Trial And Appellate Counsel, The Trial Judge Correctly Found That Deference Was Not Due And That, In Any Event, The State Trial Court Rulings Were Unsupported. The District Court properly considered the new evidence in its determination of the constitutional claims: Having determined that any procedural default or delay is excused, it would be illogical then to refuse to consider the entire record in evaluating the constitutional claims.

The State cites a statute in a footnote regarding victim participation. AOB 59 n. 18. The requirements were met in this case because the victim was notified of the hearing and submitted an affidavit, which the court accepted and considered. Nothing more is required. 74

17

ER 72. House held that the standard of review in the context of Schlup is not governed by 28 U.S.C. § 2254(e)(2): Neither provision [in § 2254(e)(2)] addresses the type of petition at issue here – a first federal habeas petition seeking consideration of defaulted claims based on a showing of actual innocence. Thus, the standard of review in these provisions is inapplicable. House, 547 U.S. at 539. The State disagrees, arguing that Mr. Lee had “four years after the state post conviction court could have, and should have, been given the opportunity to review that evidence.” ER 68.18 According to the State, even after the petitioner has passed the Schlup gateway, the principles of finality and federal-state comity prohibit courts from considering newly presented evidence. AOB at 68. In essence, the State argues that, once a petitioner passes through the Schlup gateway, the court can consider a petitioner’s constitutional claims – even those never presented to the state courts – but may not consider any new evidence in support of those claims unless he can demonstrate he diligently attempted to develop that evidence in state court. For example, a petitioner’s claim of ineffective assistance of counsel for failure to obtain a DNA expert is time-barred, so the DNA test would be inadmissible for not

It is not clear what “four year period” the State refers to given that Mr. Lee filed his petition approximately seven months after post-conviction proceedings were final. 75

18

being sought during the state court proceedings. The DNA test in federal habeas could of course be offered in support of a Schlup actual innocence showing. However, under the State’s theory, the same DNA test that gets one through the Schlup gateway cannot be considered on the merits claim of ineffective assistance of counsel. The State’s construction of § 2254(e)(2) diligence requirements would render the Schlup gateway meaningless and lead to substantial injustice. Section 2254(e)(2), like the rest of the AEDPA, protects the societal interests in finality and comity. But “in appropriate cases, the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration.” Schlup, 513 U.S. at 320-21 (citation omitted). Correcting a fundamentally unjust incarceration is not limited to consideration of the constitutional claims; the court must also be able to consider evidence in support of the claims. Schlup anticipated that the task of the habeas court would be holistic: [E]xperience has taught us that a substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare. To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence – whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence – that was not presented at trial.

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513 U.S. at 324 (emphasis added). This passage demonstrates that the petitioner can support his constitutional claims as well as his claim of innocence with new reliable evidence. See Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977) (there was no reason “to distinguish between failing to properly assert a federal claim in state court and failing in state court to properly develop such a claim.”). Because Schlup is an exception to the AEDPA’s exhaustion and diligence requirements, § 2254 is not a bar to the courts consideration of the evidence in support of the constitutional claims. The District Court correctly noted that “the statutory standard stated in 28 U.S.C. § 2254(e)(2) does not outrank the constitutional standard articulated in Schlup.” Lee v. Lampert, 2009 WL 1118708 * 2 (D.Or. 2009) (citing Marbury v. Madison, 1 Cranch 137, 176-80 (1803)). The State cites to no case holding that the District Court is restricted by § 2254 (e)(2) after a petitioner has passed the Schlup gateway. In fact, the State’s position is contradicted by House, which held that § 2254(e)(2) does not apply to Schlup proceedings. 547 U.S. at 539. House rejected the State’s argument that the AEDPA replaced the Schlup standard. The Supreme Court distinguished between the standard for successive petitions, 28 U.S.C. § 2244(b)(2)(B)(ii), and the threshold for obtaining an evidentiary hearing on claims the petitioner failed to develop in state court, § 2254(e)(2), with the “type of petition at issue here – a first federal habeas 77

petition seeking consideration of defaulted claims based on a showing of actual innocence.” House, 547 U.S. at 539. The Court concluded that the standard of review in these provisions is inapplicable in the Schlup context. Id. Mr. Lee’s petition is the type of petition that is also exempt from the AEDPA standards. On remand, the district court in House did not hesitate to consider the evidence presented in the Schlup inquiry: The result of the Supreme Court’s decision is that this court must consider on the merits the claims that were procedurally defaulted. “House has satisfied the gateway standard set forth in Schlup and may proceed on remand with procedurally defaulted constitutional claims.” After the case was remanded to this court, petitioner filed a motion for summary judgment on seven of his claims for relief. Because several of those claims were based upon evidence that was developed at the evidentiary hearing on the actual innocence claim, petitioner was allowed to amend his habeas corpus petition to conform to the proof. House v. Bell, 2007 WL 4568444 *2 (E.D. Tenn.2007). The only difference between Mr. Lee and House is that Mr. Lee does not need to amend his petition to conform to the evidence. The District Court properly considered the Nachand police report and Dr. Bruck’s report in its consideration of Mr. Lee’s claims of constitutional error.

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V.

Where The Trial Judge Found That Multiple Constitutional Violations Infected Both The State Trial And Appeal, The Trial Judge Correctly Found That The Pervasive Court Errors Required That The Petitioner Be Afforded A New Trial Free From Those Constitutional Defects. In a case in which the petitioner has always asserted his innocence, and the

only evidence were statements from a child who was four years old when serially abused by another person, trial counsel should have obtained an expert on child witness suggestibility, should have used the expert to object to the introduction of hearsay and to bolster the objection to the trial court’s rape shield ruling, and should never have introduced damaging hearsay testimony through the only defense witness. The State claims the District Court should have deferred to obviously incorrect state court findings. AOB at 73. The District Court expressly found that the state postconviction court did not have the benefit of critical evidence and found pervasive constitutional violations on plenary review and under the § 2254(d)(1) standard: This court has the benefit of critical evidence not known to the state post-conviction trial court. That court’s evaluation of the ineffective assistance claim was framed by its perception of what evidence was available, the very limited arguments presented, and the mistaken belief no Confrontation Clause or other constitutional violation had occurred. Having determined that any procedural default or delay is excused, it would be illogical then to refuse to consider the entire record in evaluating the constitutional claims. Accordingly, the AEDPA’s usual deferential standard for reviewing state court findings is inapposite, at least when the reliable new evidence casts doubt upon those findings. Moreover, the state court’s assessments of whether Lee had tenable 79

arguments for appeal, and the performance of trial counsel, were premised upon a less complete record than is now before this court, and upon some assumptions now known to be incorrect. Certain rulings also were contrary to, or an unreasonable application of, clearly established Federal law as determined by the Supreme Court. ER 72 (footnote omitted). After passing the Schlup gateway based on new evidence, deference to inconsistent findings makes no sense. The District Court’s rulings have been strongly reinforced by recent case law. In Richter v. Hickman, 2009 WL 2425390 (9th Cir. Aug. 10, 2009) (en banc), the Court reiterated the centrality of investigation and the deep prejudice from lack of preparation: At the heart of an effective defense is an adequate investigation. Without sufficient investigation, a defense attorney, no matter how intelligent or persuasive in court, renders deficient performance and jeopardizes his client’s defense. Id. at *1. In Richter, as in this case, by failing to consult with an expert, counsel failed to conduct “rudimentary investigation necessary in order to decide” the nature of the defense, what evidence should be offered, how to prepare for crossexamination, and whether to present rebuttal of prosecution witnesses. Id. The District Court found: “This case cried out for expert testimony and advice.” ER 77 (citing Duncan v. Ornoski, 528 F.3d 1222, 1234-39 (9th Cir. 2008)). Detective Fowler presented himself as a quasi-expert, identifying child abuse

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investigation as “pretty much my exclusive assignment” (ER 329), claiming that his protocols “discouraged” video or audio recording child interviews (ER 346, 348), and stating he went the child protective services for “tools” of anatomically correct dolls (ER 331-33). Further, expert advise was necessary to competently present the arguments at the OEC 412 hearing (ER 77)19 and to decide whether to call the child’s father as a witness. ER 78.20 The failure to take the basic investigative step of obtaining an expert, when the child was only four years old at the time of the incident, and when the child initially only inculpated another person, the District Court correctly found that trial counsel provided deficient performance at the OEC 412 hearing and at trial. Richter rejects the State’s arguments here that a competent lawyer would forego an expert under the circumstances of this case. As in Richter, trial counsel
19

The State complains about the District Court’s finding that “trial counsel did a poor job of articulating the significance of the evidence, and in developing a defense theory,” a finding contrary to that found by the state post-conviction court. AOB at 77-78. But the District Court’s observations regarding the trial counsel’s performance at the pre-trial 412 hearing were in the context of counsel’s failure to consult an expert in order to be more prepared for the OEC 412 hearing. ER 77. Compare ER 78 (District Court concluding that calling an expert would have influenced the blunder of calling Dan Hendricks as the lone defense witness); with Richter, supra, at *9 (trial counsel must make “an informed, strategic decision that the risks of introducing some evidence outweighs its detriment to the defense.”). Of course, absent the unconstitutional OEC 412 ruling, there would have been no reason at all to call Mr. Hendricks. 81
20

needed the expert before trial in order to make informed strategic choices. Id. at *7-9. Once in trial, the expert’s advice would enable cross-examination and rebuttal of the police officer. Id. *9-10. As the Richter court recognized, an expert can be critical where credibility is the key to the case. Id. at 10. Under deferential AEDPA review, the failure to utilize a forensic expert is deficient performance. Id. at *12. In support of this proposition, the Richter court cited to Gersten v. Senkowski, 426 F.3d 588, 607-08 (2d Cir. 2005), which found “deficient performance under AEDPA where ‘defense counsel failed to call as a witness, or even to consult in preparation for trial and cross-examination of the prosecution’s witnesses, any medical expert on child sexual abuse.’” Id. The District Court’s ruling on the Confrontation Clause recently received support from the Supreme Court. Consistent with long-standing Supreme Court authority, the District Court found that trial counsel “was prevented from effectively cross-examining Matthew” by the 412 ruling. ER 74. The State argued below, and argues now, that because the child testified on some matters, the petitioner did not lose confrontation rights. AOB 48. The District Court correctly identified the damage to the defense from the limitation on cross-examination, which this Court held to violate the Sixth Amendment under the same statute in LaJoie v. Thompson,

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217 F.3d 663 (9th Cir. 2000). ER 76. Further, the District Court found that Matthew was effectively unavailable after leaving the stand (ER 74). This position is not only supported by the State’s concessions below (ER 866, 867), the Supreme Court has held that a defendant’s ability to call an adverse witness – the authors of lab reports – is no substitute for the right to confrontation. MelendezDiaz v. Massachusetts, 129 S.Ct. 2527, 2540 (2009). The Court stated, “More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses to court.”21 In this context, appellate counsel’s failure to file on any issue at all on direct appeal is staggeringly incompetent, especially given the letter from trial counsel. ER 181 (“As in Delgado [v. Lewis, 223 F.3d 976, 980 (9th Cir. 2000)], ‘[t]he appellate issues in this case would seem self-evident.’”). As it did below, the State fails to acknowledge that appellate counsel not only failed to identify meritorious issues, appellate counsel raised no issues at all. ER 73 n.8 (“Lee’s appellate counsel did not

The State for the first time on appeal suggests that the child hearsay constitutes prior consistent statements. AOB 47-48. The statements in the police reports are radically different from Matthew’s trial testimony, both of which differ from Fowler’s and Hendrick’s testimony. Most prejudicially, the child’s trial testimony did not establish sodomy, the most serious charge, as recognized by the State below. ER 792. 83

21

abandon weaker arguments to focus on those more likely to prevail. He made no argument at all.”). The State’s reliance on the state post-conviction findings seeks to perpetuate gross factual errors. As demonstrated by the District Court’s careful analysis, the state court findings did not have the full factual context and, even then, included such flaws as assuming the evidence at issue in the 412 hearing eventually came in, which is incorrect especially in light of the initial Nachand police report; finding no “material inconsistency between statements made by witnesses to the police and their testimony at trial;” and deciding that appellate counsel correctly found no basis for appeal (ER4,5,7). The state court’s decisions were “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)(2). In its analysis of the ineffective assistance of appellate counsel claim, the District Court identified numerous constitutional confrontation violations: trial counsel’s entire case strategy was irrevocably altered; during opening statement, Lee’s counsel could not mention the strongest evidence for the defense or even present the defendant’s theory of the case; trial counsel was prevented from effectively cross-examining Matthew; and trial counsel was impeded in his crossexamination of Fowler. The District Court concluded that, although some evidence 84

about Nachand came in later, “Richard Lee was effectively deprived of his Sixth Amendment right to confront the witnesses against him, and of his constitutional right to present a defense.” ER 76 (citing LaJoie, 217 F.3d 663; Davis v. Alaska, 415 U.S. 308, 317 (1974)). The State’s contention that an appeal of the OEC 412 ruling would not have been meritorious is contradicted by State v. Martin, 226 Or.App. 199, 225, 203 P.3d 220 (2009), cited with approval by the State (AOB at 48), where the court held it was reversible error to exclude allegations of prior abuse under OEC 412. The State contends that Mr. Lee cannot show prejudice from counsel’s failure to call an expert because the State would have called a witness to impeach Dr. Bruck’s testimony. AOB at 83-84. As an initial matter, the prosecution presented Fowler as an expert; Dr. Bruck’s testimony should be compared to his testimony where he stated that it is inappropriate to record interviews, where he questioned the child about abuse by Robert or Richard, and where he allowed the father to be present during the interview. Had the jury also heard Dr. Bruck’s testimony – a credible and respected expert – the jury would have had to conclude that one expert or the other was wrong or untruthful. Even if the State called an child witness expert, the State’s pm;u proffered expert testimony agreed with Dr. Bruck’s opinion that the use of dolls is inappropriate with children who have been victims of abuse. ER 830. Under these circumstances, counsel’s failure to present expert testimony undermines confidence 85

in the verdict, and, accordingly, was prejudicial under Strickland v. Washington, 466 U.S. 668 (9th Cir. 1994). The State relies on the weakness of the prosecution’s case as demonstrating that Mr. Lee was not prejudiced by counsel’s failure to call an expert because “Matthew’s testimony showed confusion directly.” AOB at 84. To the contrary, expert testimony was essential “in light of the substantial weaknesses in the prosecution’s case, that rendered it highly likely that expert testimony would determine the outcome.” Richter, at *16. The State is simply wrong in concluding that failure to “call an expert in order to pose the most obvious line of defense is not ineffective assistance of counsel under Strickland.” AOB at 85. Courts reviewing ineffective assistance of counsel claims should review the whole record and determine whether trial counsel’s errors influenced other aspects of trial: In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the 86

prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors. Strickland, 466 U.S. at 695-96 (emphasis added). As this Court recently noted, the Strickland test requires an assessment of “the aggregate impact of counsel’s deficient actions when evaluating whether such failures are prejudicial.” Richter v. Hickman, 2009 WL 2425390 at *18. The District Court appropriately reviewed the entire record and noted that counsel’s ineffectiveness affected the trial in other respects. The serious constitutional errors identified by the District Court errors demonstrate why the grant of habeas should be affirmed. Conclusion For the foregoing reasons, the District Court’s grant of habeas corpus relief should be affirmed. Respectfully submitted: August 19, 2009.

/s/ Stephen R. Sady Stephen R. Sady Attorney for Petitioner-Appellee Assisting on the brief: Lynn Deffebach Research and Writing Attorney

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IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

RICHARD R. LEE,

) ) Petitioner-Appellee, ) CA No. 09-35276 ) v. ) ) ROBERT O. LAMPERT, ) ) Respondent-Appellant ).

STATEMENT OF RELATED CASES

I, Stephen R. Sady, undersigned counsel of record for defendant-appellant, , state pursuant to the Ninth Circuit Court of Appeals Rule 28-2.6, that I know of no other cases that should be deemed related. Dated this August 19, 2009.

/s/ Stephen R. Sady Stephen R. Sady Attorney for Petitioner-Appellee

88

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

RICHARD R. LEE,

) ) Petitioner-Appellee, ) CA No. 09-35276 ) v. ) ) ROBERT O. LAMPERT, ) ) Respondent-Appellant ).

BRIEF FORMAT CERTIFICATION PURSUANT TO FRAP 32(a)(7)(C) AND NINTH CIRCUIT RULE 32-1

Pursuant to FRAP 32(a)(7)(C) and Ninth Circuit Rule 32-1, I certify that the Answer Brief of Appellee is proportionately spaced, has a typeface of 14 points or more and contains 21,174 words. Dated this August 19, 2009.

/s/ Stephen R. Sady Stephen R. Sady Attorney for Petitioner-Appellee

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CERTIFICATE OF SERVICE I hereby certify that on August 19, 2009, I electronically filed the foregoing Response Brief of Petitioner-Appellee with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

/s/ Jill C. Dozark Jill C. Dozark

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