Cripe v. Reyes

AARON J. CRIPE,
Petitioner,
V.
ERIN REYES,
Respondent.
CLARKE, Magistrate Judge.
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
Case No. 2:23-cv-00593-CL
FINDINGS AND
RECOMMENDATION
Petitioner brings this federal habeas action under 28 U.S.C. § 2254 and challenges his
state court convictions on grounds that his trial counsel rendered ineffective assistance in
violation of his rights under the Sixth Amendment. For the reasons explained below, two of
Petitioner' s claims are barred from federal review through procedural default and his remaining
claim was rejected by the Oregon courts in a decision that is entitled to deference. Accordingly,
the First Amended Petition should be denied .
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BACKGROUND
In June 2013, Petitioner was charged with one count of Unlawful Sexual Penetration in
the First Degree, three counts of Sodomy in the Second Degree, and eight counts of Sexual
Abuse in the First Degree. Resp't Ex. I 02. The charges arose from the sexual abuse of NH, who
was eleven and twelve years old when the abuse occurred.
Petitioner was twenty-six years old at the time of the offenses and rented a room in NH 's
family home. Transcript of Proceedings (Tr.) 694, 872, 876-77 (ECF No. 26- I). 1 NH developed a
"c rush" on Petitioner, and 	H 's family members and others in the household knew of her
infatuation. Tr. 225-26, 251, 342-44, 528-29.
In November 2012, NH disclosed to her sisters that she and Petitioner had engaged in
sex ual conduct. Tr. 254-59, 272. NH 's o ld er sister informed their father, who reported NH's
disclosures to the police. Tr. 599-600. Roseburg Police Officer Dingman began investigating and
questioned NH and her older sister. Tr. 601-06. NH told Officer Dingman that she had lied to her
sisters and that the disclosures were "made up." Tr. 505, 605. Despite NH 's statements, Officer
Dingman believed that he needed to ensure NH's safety by having her or Petitioner leave the
residence, and NH 's mother decided that NH should stay with her grandmother. Tr. 607-08.
NH's parents also made NH apologize to Petitioner for "telling li es" and made her apologize a
second time after they did not " believe" her first apology was sincere. Tr. 506, 588, 637-38.
A few days later, 	H told her mother that the disclosures were not fabricated. Tr. 319-
323. NH also disclosed a diary with entries describing numerous incidents of sexual contact with
Petitioner. Tr. 514, 623-24, 628-29.
1 Citations to transcript pages refer to the page number at the bottom right hand corner of
the transcript, e.g.: "TRANSCRIPTS , Pa ge 694 of 1183 Case No. 2:23-cv-00593-CL."
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Officer Dingman and Roseburg Police Detective Knott interviewed NH again, and NH
disclosed multiple incidents of sexual abuse that occurred in August, October, and November of
2012. Tr. 618-29, 685, 688-700. In particular, NH disclosed to Detective Knott that Petitioner
touched her vagina and digitally penetrated her on October 8, 2012 and similarly abused her on
October I 0, 2012, when NH was still eleven years old. Tr. 695-97.
During the police in vestigation, NH's mother gave police officers NH 's bed sheets and a
tank top worn by NH during one incident with Petitioner, and these items were tested for the
presence of sperm and DNA evidence. Tr. 292-95, 3 18 ,377. Petitioner's DNA was found to be
consistent with a DNA profile found on the inside of NH's tank top. Tr. 378.
The case proceeded to trial. Petitioner 's counsel relied on NH's undisputed infatuation
with Petitioner and argued that NH had fabricated the allegations of sexual abuse and that her
diary entries were nothing but "fa ntasy." Tr . 169-70, 1080-81 , 1084, 1086-88, 1092-95, 1100.
Counsel emphasized that NH's family punished NH for "telling the truth" and recanting her
initial disclosures and rewarded NH when she later repeated the allegations. Tr. 169, 505-08,
I 084-90. During opening argument, Petitioner 's counsel referenced NH 's diary in that context:
I anticipate that you will hear many witnesses in this trial agree that [NH] had a
crush on Mr. Cripe. It was never more than that. You' II hear she kept a diary
where the crush turned into a full -blown romance. Now, when confronted and to
tell the truth she said nothing happened. She gets in trouble for telling the truth,
though, so she changes the story .
***
Now, around Thanksgiving allegations were made. You're going to hear evidence
about that just as counsel said. Now , [NH] told the truth and sa id it wasn't real.
This is a fantasy. This is not something that actually happened between me and
Mr. Cripe. So her parents made her apologize for these false accusations and had
her stay elsewhere for that night and they made her apologize twice because the
first time she didn ' t seem like she was being sincere about it ... [Y]ou' II hear she
does change her story and then two days later she produces [a] diary with these
incredible allegations in it and brazen accusations about things that happened[.]
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Tr. 169 , 170-71.
During her direct examination, NH was reluctant to testify and the trial court adjourned
the proceedings to address NH ' s ability to testify. Tr . 182-95. Although the court found NH
competent, the State presented additional witnesses before calling NH back to the stand two days
later. Tr. 213-14. When NH returned to the stand, she testified about sexual contact between her
and Petitioner, but she could not identify specific details or the dates when the abuse occurred.
Tr. 444-471. The prosecutor attempted to use NH ' s diary to refresh her memory, and NH still
could not recall the specific dates or details of the abuse. Tr. 473-74.
During NH's cross-examination, Petitioner' s counsel questioned NH about her reluctance
to testify, and NH answered that her parents had "bribed" her:
Q: 	And you don't want to be up here testifying, right?
A: 	No.
Q: 	And your parents want you to be up here to testify, right?
A: 	I don ' t know.
Q: 	You ' d agree, though, that after Wednesday morning when you really
weren ' t comfortable saying much your parents wer e n't happy that you
weren ' t saying much, correct?
A: 	Yeah . And so they bribed me .
Q: 	They what?
A: 	They bribed me.
Q: 	How did they bribe you?
A: 	They said if I do good and I testify, then I (inaudible).
Tr. at 504-05.
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On redirect examination, the State moved for the admission ofNH's diary to rebut a
charge of recent fabrication or improper influence. Tr. 537-40, 544-48; see Or. Evid . Code
801(4)(a)(B). Petitioner' s counsel objected, and the trial court heard argument and conducted
additional research before admitting the diary into evidence. The trial court explained that
several areas of counsel ' s cross-examination of NH implied that she had fabricated the
allegations or was motivated to lie, and that the diary was admissible on those grounds:
It ' s offered to rebut an inconsistent statement or express or implied charge
against the witness of recent fabrication or improper influence or motive.
I think there ' s a number of categories that it falls in within there. You
know, talking about some of the cross-examination that took place about the
parents wanting [NH] to testify and, you know, there was even talk that she
offered in terms of being bribed and things, you know, if she did better [NH
would] get all [her] stuff back, and that was followed [] by other questions in
cross-examination about, you know, the diary didn't come up initially. It only
came up after [NH had) been at[] grandma ' s for a couple of days. I think there's
an implied charge against the witness of either fabrication or improper influence
or motive.
And there was also cross-examination, some of this stuff I went back and
listened to, about her parents thought she was lying, made [NH] apologize twice.
No one believed [her] apology, so [NH] had to apologize twice. Somebody had to
leave and, you know, the degree of being influenced by her parents being angry
and then people stopped calling her a liar, that type of thing[.)
Tr. 555-56.
The jury acquitted Petitioner of one count of Sexual Abuse in the First Degree and found
him guilty of the remaining charges. Tr. I 140-41. The trial court imposed the mandatory
minimum sentence of 300 months' imprisonment on Count 2, Unlawful Sexual Penetration, and
imposed concurrent 75-month sentences on the remaining counts. Resp ' t Ex. 101. 2
2 The jury ' s verdict was not unanimous regarding one count of Sexual Abuse in the First
Degree, and Petitioner's conviction on this count was vacated after a successive post-conviction
relief proceeding. Resp ' t Exs. 130-48.
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Petitioner directly appealed his convictions and challenged the trial court's admission of
NH's diary and his 300-month sentence. Resp 't Ex. I 03-04. The Oregon Court of Appeals
affirmed without opinion and the Oregon Supreme Court denied review. Resp ' t Exs. I 07-08.
Petitioner then sought post-conviction relief (PCR) and claimed that trial counsel
rendered ineffective assistance by failing to present testimony from a forensic DNA expert and
by cross-examining NH in a manner that led to the admission of her diary. Resp't Exs. I 09-11.
The PCR court denied relief and the Oregon Court of Appeals affirmed in a memorandum
opinion. Resp 't Exs. 123 , 126. Before the Oregon Supreme Court, Petitioner sought review of
the claim alleging that counsel was ineffective by eliciting testimony that led to the admission of
H's diary. Resp 't Ex. 127. The Oregon Supreme Court denied review. Resp ' t Ex. 128.
Petitioner now seeks federal habeas relief.
DISCUSSION
Petitioner 's First Amended Petition alleges three claims for relief. First, Petitioner alleges
that trial counsel's unreasonably cross-examined NH and elicited testimony that led to the
admission of her diary, which contained prejudicial and incriminating entries. Second, Petitioner
contends that counsel unreasonably failed to retain and present testimony from a DNA expert
witness. Third, Petitioner asserts that the cumulative errors of counsel deprived him of a fair trial.
See generally First Am. Pet. (ECF No. 18). Respondent argues that the PCR court rejected
Petitioner's first claim in a decision that is entitled to deference and that Petitioner 's remaining
claims are barred from federal review through procedural default.
A. Cross Examination of NH
Petitioner was charged with Unlawful Penetration in the First Degree arising from
Petitioner 's alleged digital penetration of NH when she was under the age of twelve. Resp't Ex.
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I 02. Thus, the State was required to establish beyond a reasonable doubt that the sexual
penetration occurred before NH turned twelve on October 27, 2012, and the State presented
evidence that the unlawful penetration occurred on or about October 8, 2012. Id.; Tr. 176, 695-
97. The jury found Petitioner guilty of this offense and the trial court sentenced him to the
mandatory minimum sentence of 300 months. Tr . 1174-75.
Petitioner contends that NH's direct testimony did not establish that he digitally
penetrated her when she was eleven, because she could not identify the specific dates on which
the abuse occurred. NH ' s diary included dates and descriptions of Petitioner's abuse, and
Petitioner argues that his counsel rendered ineffective assistance by eliciting testimony from NH
on cross-examination that led to the admission of her diary. Petitioner argues that the diary's
admission allowed the State to establish that NH was eleven when the sexual penetration
occurred and had the diary not been admitted , the jury could have found reasonable doubt as to
when the sexual penetration occurred and acquitted Petitioner of the most serious charge against
him.
The PCR court rejected this claim , and Respondent argues that the PCR court's decision
is reasonable and entitled to deference. 3
3 This Court reviews the " last reasoned" decision by the state court, and in this case, it is
the PCR court' s decision. Ylst v. Nunnemaker, 50 I U.S. 797, 803 ( 1991 ); Comstock v.
Humphrie s, 786 F .3d 70 I, 707 (9th Cir. 2015). Although the Oregon Court of Appeals affirmed
in a written memorandum opinion , it simply found:
The postconviction court did not err in concluding that petitioner did not prove in
either his second or third claim for relief that trial counsel's performance fell
below an objective standard of reasonableness. We therefore do not need to reach
the issue of whether petitioner suffered prejudice as a result of trial counsel's
performance.
Resp ' t Ex. 126 at 2.
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A federal court may not grant a habeas petition regarding any claim "adjudicated on the
merits" in state court, unless the state court ruling "was contrary to, or involved an unreasonable
application of, clearly established Federal law." 28 U.S.C. § 2254(d)(I). A state court decision is
- 	"contrary to" established federal law if it fails to apply the correct Supreme Court authority or
reaches a different result in a case with facts " materially indistinguishable" from relevant
Supreme Court precedent. Brown v. Payton, 544 U.S. 133 , 141 (2005); Williams v. Taylor, 529
U.S. 362, 405-06 (2000). A state court decision is an " unreasonable application" of clearly
established federal law if the state court identifies the correct legal principle but applies it in an
"objectively unreasonable" manner. Woodford v. Vi sciotti, 537 U.S. 19, 24-25 (2002) (per
curiam); see also Early v. Packer, 537 U.S. 3, 11 (2002) (state court decisions may be set aside
only " if they are not merely erroneous, but ' an unreasonable application ' of clearly established
federal law, or are based on ' an unreasonable determination of the facts "' ); Penry v. Johnson ,
532 U.S . 782, 793 (200 l) (" [E]ven if the federal habeas court concludes that the state court
decision applied clearly established federal law incorrectly, relief is appropriate only if that
application is also objectively unreasonable." ).
Under the well-established Supreme Court precedent of Strickland v. Washington , 466
U.S. 668 ( 1984 ), a petitioner must establish that I) "counsel ' s performance was deficient" and 2)
the "deficient performance prejudiced the defense." 466 U.S. at 687. To establish deficiency and
prejudice, a petitioner "must show that counsel ' s representation fell be low an objective standard
of reasonableness" and "there is a reasonable probability that, but for counsel ' s unprofessional
errors, the result of the proceeding would have been different" to Id. at 688, 694. Unless a
petitioner "makes both showings, it cannot be said that the conviction ...resulted from a
breakdown in the adversary process that renders the result unreliable ." Id. at 687.
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"The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged
with the benefit of hindsight." Yarborough v. Gentry, 540 U.S. I, 8 (2003) (per curiam).
Accordingly, this Court' s review of an attorney ' s performance under Strickland is "highly
deferential " and "strategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable. " Strickland, 466 U.S. at 689-90. Further, a
"doubly deferential" standard applies when "a federal court reviews a state court' s Strickland
determination." Cheney v. Washington, 614 F .3d 987, 995 (9th Cir . 20 I 0). The state court "must
be granted a deference and latitude that are not in operation when the case involves review under
the Strickland standard itself." Harrington v. Richter, 562 U.S. 86, IO 1 (2011 ).
The PCR court found that counsel ' s cross-examination of NH was neither deficient nor
prejudicial, for the following reasons:
Trial counsel adopted an effective strategy to challenge N.H.'s accusations, which
he also employed during his cross-examination of N.H. Trial counsel used the
diary as part of that cross-examination and believed that he was not opening the
door to allow the state to admit the contents of the complaining witness ' s diary.
Trial counsel did know that he was toeing the line to opening the door, but he
believed that he could challenge the complaining witness ' s competency without
opening the door ... The fact that trial counsel ' s approach ultimately resulted in
the diary being admitted does not mean that trial counsel's approach was
unreasonable. Trial counsel's tactical choice, at the moment it was made, to elicit
testimony from N.H. supporting the defense argument on how she was
incentivized both to disclose the abuse and to testify at trial was reasonable[.]
Petitioner has also failed to prove prejudice. N.H . testified that she was abused in
August and October, and she disclosed to police investigators that petitioner
digitally penetrated her on October 8, 2012, when she was 11 years-old. Those
police investigators provided that evidence, along with additional detailed
evidence of all of the incidents of abuse, to the jury through their testimony
reporting what N.H. told them. Evidence regarding the date of the crime of
Unlawful Sexual Penetration was already before the jury . Trial counsel used the
introduction of the diary into evidence effectively during closing. The prosecution
did not rely on the contents of the diary during its closing argument. Petitioner has
failed to prove that the admission of the dairy consequent to N.H .' s testimony
could have tended to affect the outcome of petitioner's trial.
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Resp't Ex. 123 at 4. Based on the record, Petitioner fails to show that the PCR court's decision
was an unreasonable application of Strickland.
Essentially, the PCR court found that, while NH's diary may have corroborated the
nature and dates of sexual abuse, reasonable trial counsel could have concluded that the risk of
the diary ' s admission was outweighed by the benefit of NH ' s testimony that she had been
" bribed" by her parents to testify. This finding was reasonable.
Petitioner' s entire defense strategy was based on the theory that NH fabricated the
allegations and was rewarded for disclosing them to the police. Petitioner' s counsel portrayed
NH as untruthful and prone to fantasy and, during NH ' s cross-examination, counsel focused on
NH's reluctance to report the abuse, her initial denial of the abuse, her reticence in testifying, and
the alleged improper influence of her family . Counsel understood that his cross-examination
strategy risked opening the door to the admission ofNH ' s diary, but counsel believed he "could
paint a picture for the jury of a witness that could not competently report what happened either to
police or at trial." Resp ' t Ex. 121 at 2. To that end, testimony that NH ' s parents "had bribed" her
to testify against Petitioner was compelling ev idence and directly supported the theory that she
"was incentivized both to disclose the abuse and to testify at trial." Resp 't Ex. 123 at 4. Given
Strickland' s " presumption that counsel's conduct falls within the wide range of reasonable
professional assistance," 466 U.S. at 689, it was not objectively unreasonable for the PCR court
to "deem counsel ' s choice ... a tactical decision about which competent lawyers might disagree."
Bell v. Cone, 535 U.S . 685 , 702 (2002) .
Likewise, the PCR court reasonably found no prejudice. NH testified that incidents of
abuse occurred in August and October, and Detective Knott testified that NH disclosed that
Petitioner digitally penetrated her on October 8 and I 0, 2012, when NH was eleven years old. Tr.
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456-461, 695-97. Further, NH ' s diary did not include an entry for October 8, 2012, and the
prosecution did not rely on NH's diary to establish when the unlawful penetration occurred. E.g.,
Tr. 714-15 , 1054-79, 1100-03. Thus, the diary was cumulative of other evidence presented at
trial, and the PCR court reasonably concluded that Petitioner failed to prove that its admission
likely affected the outcome at trial.
ln sum, the PCR court did not unreasonably apply clearly established federal law in
finding no deficiency by counsel and no resulting prejudice.
B. 	Failure to Obtain Forensic Expert and Cumulative Error
Petitioner also asserts that counsel was ineffective by failing to obtain a forensic expert to
counter the State ' s use of DNA evidence and that counsel ' s cumulative errors warrant habeas
relief. Respondent argues that Petitioner failed to fairly present these claims to the Oregon
Supreme Court and the claims are unexhausted and procedurally barred.
"Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available
state remedies, thereby giving the State the opportunity to pass upon and correct alleged
violations of its prisoners ' federal rights ." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal
quotation marks and citation omitted); see also 28 U.S.C. § 2254(b)(I) . In order to exhaust
available state remedies, a petitioner must present all federal constitutional claims to the State's
highest court before seeking federal habeas relief. Id.; Cooper v. Neven, 641 F .3d 322, 326 (9th
Cir. 2011) (" Exhaustion requires the petitioner to ' fairly present' his claims to the highest court
of the state."). If a claim was not fairly presented to the state courts and no state remedies remain
available for the petitioner to do so, the claim is barred from federal review through procedural
default. S ee Coleman v. Thompson , 501 U.S. 722, 732, 735 n.1 (1991 ).
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In his Second Amended PCR petition, Petitioner alleged that counsel was deficient by
failing to obtain a forensic expert to rebut the State' s DNA evidence. Resp ' t Ex. 111. The PCR
court rejected this claim and Petitioner challenged the PCR court's decision on appeal. Resp 't
Exs. 123, 124. However, Petitioner did not present this claim to the Oregon Supreme Court when
seeking review, and Petitioner did not raise a claim of cumulative error in his PCR petition or on
appeal. Resp't Ex. 127. Petitioner can no longer raise these claims before the Oregon courts, and
they are procedurally defaulted. See Sandgathe v. Maa ss, 314 F.3d 371 , 376 (9th Cir. 2002) ("A
procedural default may be caused by a failure to exhaust federal claims in state court." ).
Petitioner did not respond to the State' s argument regarding exhaustion and fails to show
cause and prejudice to excuse the default. Accordingly, these claims are procedurally defaulted
and barred from federal review.
CONCLUSION
The First Amended Petition for Writ of Habeas Corpus (ECF No. 18) should be
DE 	JED . A Certificate of Appealability should be DENIED on grounds that Petitioner has not
made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c )(2).
This Findings and Recommendation will be referred to a district judge. Objections, if
any , are due within (14) days from service of the Findings and Recommendation. If objections
are filed , any response is due fourteen (14) days after being served with a copy of the objections.
Petitioner is advised that the failure to file objections within the specified ·me may waive the
right to appeal the District Court's final order. Martinez v. Yls, •
DATED this /!2_ day of December, 2025.
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