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Bomar v. O'Fallen

United States District Court, Ninth Circuit

December 23, 2013

LARRY BOMAR, Petitioner,
v.
DAN O'FALLEN; ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

FINDINGS AND RECOMMENDATION

KEITH STRONG, Magistrate Judge.

On September 14, 2012, Petitioner Larry Bomar, a state prisoner proceeding pro se, filed this action seeking a writ of habeas corpus under 28 U.S.C. § 2254. Respondents ("the State") filed excerpts from the state court record on January 31, 2013. On June 18, 2013, he was ordered to show cause why two of his claims should not be dismissed with prejudice as procedurally defaulted. Mr. Bomar responded on July 12, 2013. He did not provide legitimate reasons for his failure to present his claims in state court. They are procedurally defaulted and should be dismissed.

I. Preliminary Screening

Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts requires courts to examine the petition before ordering the respondent to file an answer or any other pleading. The petition must be summarily dismissed "[i]f it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Id.

A petitioner "who is able to state facts showing a real possibility of constitutional error should survive Rule 4 review." Calderon v. United States Dist. Court, 98 F.3d 1102, 1109 (9th Cir. 1996) (" Nicolaus ") (Schroeder, C.J., concurring) (referring to Rules Governing § 2254 Cases). Rule 4 review "may properly encompass any exhibits attached to the petition, including, but not limited to, transcripts, sentencing records, and copies of state court opinions. The judge may order any of these items for his consideration if they are not yet included with the petition." Advisory Committee Note (1976), Rule 4, Rules Governing § 2254 Cases. "[I]t is the duty of the court to screen out frivolous applications and eliminate the burden that would be placed on the respondent by ordering an unnecessary answer." Id .; see also 28 U.S.C. § 2243.

II. Background

In December 2001, K.J., who was eight at the time and living in Oregon, told her mother that the grandfather of her friend, A., had touched her bottom. K.J. and A. did not know each other well. They met and played together one weekend in the summer of 2000 in Montana, when K.J.'s grandparents were staying at a campground run by A.'s grandparents. K.J. had not been back to Montana since that time. Authorities began investigating in roughly January 2002. Trial was held in November 2005.

Mr. Bomar is A.'s grandfather. In at least one statement to police, K.J. said the man who touched her bottom was short and had a moustache and a tattoo. Mr. Bomar does not have a moustache or a tattoo. The trial transcript suggests he is not short. K.J. said the incident occurred in the morning, when the man who touched her was sitting in Mr. Bomar's favorite chair in Mr. Bomar's living room. He called her over to his chair, so she went over and stood by him for a short period of time. K.J. said A. was in the room, too, but he was watching cartoons. She said Mrs. Bomar was outside, tending to her flower garden. Both A. and Mrs. Bomar testified they were present when Mr. Bomar was sitting in his favorite chair and K.J. went over and stood by him. They said it was evening. K.J. gave a graphic and credible description of a penis becoming erect, and she said the man who touched her bottom held her in front of him by placing one of his hands on her shoulder blade. K.J. testified at trial. She identified Mr. Bomar as the man who touched her bottom.

In addition to K.J.'s mother and grandmother and an investigating officer, Officer Stoelk, the State called an expert witness, Rochelle Beley. Ms. Beley obtained a Master's Degree in marriage and family therapy, held various certificates for attending workshops and training "on the area of dealing with children, " including therapy for sexually abused children. She worked for the State of Montana's Department of Child Protective Services from 1987 to 1990 and, at the time of trial, had been in private practice as a marriage and family therapist since 1990. 1 Trial Tr. (Doc. 5-10) at 165:17-167:18.

Beley testified that she reviewed the statements Stoelk reported K.J. made and applied "Statement Validity Assessment, " a method she frequently used in her practice to decide whether "the mode of treatment needs to [be] for treatment of a sexual assault, or if the mode of treatment needs to be to treat for why this child made a false allegation." Id. at 171:19-172:4.[1]

Q. What is the Statement Validity Assessment?
A. The belief of the Statement Validity Assessment is that there are certain aspects of a child's statement of sexual abuse that appear to be consistent for valid statements of abuse. Those aspects do not appear to be present in statements where children are fabricating abuse.
...
Q. And what information did you access, what materials did you receive and then apply Statement Validity Assessment to?
...
A.... I received [Stoelk's] report that was provided to the Glacier County Sheriff's Department, I received an Assessment Report from Liberty House, and I received a copy of Jeff Kraft's narrative, police department narrative and investigation.
Q. Of all those documents, what did you primarily assess?
A. I primarily assessed the report from the Salem, Oregon, Craig Stoelk's police report.
Q. And what was the result of the Statement Validity Assessment when applied to Detective Stoelk's report?
A. Based on my evaluation of the statements Mr. Stoelk reported [K.J.] made, it appeared many of those statements were consistent with the research, which ...

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