                                                                            FILED
                            NOT FOR PUBLICATION                              OCT 28 2010

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



WAYNE THOMAS HOUFF,                              No. 09-35248

              Petitioner-Appellant,              D.C. No. 3:06-cv-0445-PK

  v.                                             MEMORANDUM *

SHARON BLACKETTER,
Superintendent, Eastern Oregon
Correctional Institution,

              Respondent-Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                     James Redden, District Judge, Presiding

                       Argued and Submitted October 6, 2010
                                 Portland, Oregon

Before: PAEZ and CLIFTON, Circuit Judges, and BURNS, ** District Judge.

       Wayne Houff was convicted after a bench trial in Oregon state court of four

counts of using a child in a display of sexually explicit conduct, four counts of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Larry A. Burns, United States District Judge, Southern
District of California, sitting by designation.
encouraging sexual abuse in the second degree, and two counts of sexual abuse in

the first degree. Houff petitioned for habeas corpus under 28 U.S.C. y 2254, and

the district court denied his petition. We affirm.

      Houff argues that the admission into evidence of hearsay testimony by the

victim's mother concerning statements made by the four-year-old victim violated

his Sixth Amendment right to confrontation under Idaho v. Wright, 497 U.S. 805

(1990). The trial court discussed the admissibility of the evidence primarily in

terms of the relevant provision of Oregon evidence law, O.R.S. y 40.460(18a)(b),

because that was how Houff objected to the evidence. Houff did not appear to

press a constitutional objection based on Wright. In its ruling, the trial court

referred to corroboration of the victim's statements by the photographs. Reliance

upon such corroboration was not appropriate under Wright, which held the

Confrontation Clause disallows 'bootstrapping on the trustworthiness of other

evidence' to demonstrate the reliability of hearsay. 497 U.S. at 822. But reference

to such corroboration was both appropriate and necessary to rule on the objection

under Oregon evidence law, which required not only 'indicia of reliability as is

constitutionally required to be admitted,' under cases liµe Wright, but also

'corroborative evidence of the act of abuse and of the alleged perpetratorùs

opportunity to participate in the conduct.' O.R.S. y 40.460(18a)(b). That the trial



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court referred to other evidence in overruling Houff's objection under the

apparently higher standard imposed by state evidence law does not mean that the

court necessarily violated Wright.

       From our review of the transcript, it is apparent to us that the trial court

properly concluded that the statement by the victim describing the sexual abuse

had the necessary indicia of reliability as required under Oregon evidence law and

as a constitutional requirement. The Oregon hearsay exception lists specific factors

that indicate reliability.1 These factors duplicate and add to the indicia of reliability

listed in Wright.2 The trial judge methodically went through each of the factors.

He concluded that he was 'virtually certain' the child made the statements; that


       1
        Under O.R.S. y 40.460(18a)(b), the court may consider A) the personal
µnowledge of the declarant of the event; B) the age and maturity of the declarant;
C) certainty that the statement was made, including the credibility of the person
testifying about the statement; D) any apparent motive the declarant may have to
falsify or distort the event, including bias, corruption, or coercion; E) the timing of
the statement of the declarant; F) whether more than one person heard the
statement; G) whether the declarant was suffering pain or distress when maµing the
statement; H) whether the declarant's young age maµes it unliµely that the
declarant fabricated a statement that represents a graphic, detailed account beyond
the µnowledge and experience of the declarant; I) whether the statement has
internal consistency and uses terminology appropriate to the declarant's age; J)
whether the statement is spontaneous or directly responsive to questions; and K)
whether the statement was elicited by leading questions.
      2
        These include 1) spontaneity and consistent repetition, 2) the mental state of
the declarant, 3) the use of terminology unexpected of a child of a similar age, and
4) a lacµ of motive to fabricate. Wright, 497 U.S. at 821-2.

                                            3
although the mother had pressured the child to reveal the incident, the mother was

a truthful and reliable reporter of the child's statements; that the child had no

apparent bias that would cause her to falsify a report of molestation; that the child's

description of the events was sufficiently detailed to compel the conclusion that she

had no other source of information than personal µnowledge; that the nature of the

sexual activity described was well beyond the liµely µnowledge of a child her age,

maµing it unliµely that she fabricated her account; that any inconsistency in the

child's account was attributable to the child's imprecise use of language and

possible problems in translation; and that there was no evidence that the child's

account was the product of questioning that suggested the very information the

child revealed. That the child victim's statements were particularly liµely to be

truthful, under the Wright standard, was not an unreasonable conclusion. See 28

U.S.C.A. y 2254(d).

      In his habeas petition, Houff also argued that he was denied his Sixth

Amendment right to a jury trial and proof beyond a reasonable doubt as to facts

supporting his dangerous offender sentence enhancement. See Apprendi v. New

Jersey, 530 U.S. 466 (2000). This claim was procedurally defaulted because Houff

did not present it to the Oregon Supreme Court in his direct appeal. See OùSullivan

v. Boercµel, 526 U.S. 838, 848-849 (1999); Noltie v. Peterson, 9 F.3d 802, 804-805



                                           4
(9th Cir. 1993).

      AFFIRMED.




                   5
                                                                               FILED
Houff v. Blacµetter, No. 09-35248.                                              OCT 28 2010

                                                                          MOLLY C. DWYER, CLERK
PAEZ, dissenting in part:                                                    U.S . CO U RT OF AP PE A LS




      The majority emphasizes that the trial court methodically applied the

reliability factors set forth in Oregon law. In addition to considering these factors,

the trial court had to find that there was evidence corroborating the

hearsay-without corroborating evidence, the hearsay would not have been

admissible under Oregon law. I agree with the majority that the trial court's

application of Oregon's evidence rule was proper. However, as the majority

concedes, corroboration is not appropriate under Wright's constitutional inquiry,

and the trial transcript demonstrates that the court did not disregard the

corroborating photographic evidence it used in its evidentiary ruling before

concluding that the hearsay evidence was constitutionally reliable. In fact, the

record indicates that the trial court did not understand that the Oregon standard and

the constitutional standard require separate analyses because the use of

corroborating evidence is unconstitutional under Wright.

      The record reflects that the trial court's state law analysis, in which it

'bootstrapp[ed] on the trustworthiness of other evidence', improperly infected its

ruling on the constitutional question as well. Idaho v. Wright, 497 U.S. 805, 823

(1990). This result is decidedly at odds with the Confrontation Clause. Id. Even


                                           1
assuming that at trial Houff objected to the evidence only under the Oregon

hearsay rule, the State has not raised a procedural bar against Houff's Sixth

Amendment Confrontation claim.

      Therefore, in my view we should apply the governing Confrontation Clause

doctrine as the Supreme Court articulated it in Wright. Admitting the victim's

hearsay statements was both contrary to and an unreasonable application of Wright.

28 U.S.C. y 2254(d)(1). As a result, I would reverse the district court's denial of

habeas relief on this claim.

      Explaining its rule against bootstrapping, Wright stated that '[c]orroboation

of a child's allegations of sexual abuse by medical evidence of abuse, for example,

sheds no light on the reliability of the child's allegations regarding the identity of

the abuser.' Id. at 823-824. Here, the trial court's ruling on constitutional

reliability was contrary to Wright because it referred to photographic evidence of

Houff's inappropriate interest in the victim as 'a hundred percent corroborat[ing]'

the statements about sexual abuse. These photographs, were 'not insignificant in

assessing the reliability of [the victim] as an informer.' The trial court

transparently engaged in exactly the type of bootstrapping prohibited by Wright,

rendering its decision contrary to clearly established federal law.

      The trial court's decision was also an unreasonable application of Wright's


                                            2
totality of the circumstances test. The 'unifying principle' of this test is 'whether

the child declarant was particularly liµely to be telling the truth when the statement

was made.' 497 U.S. at 822. In Wright, the Court found that the truthfulness of

statements a young girl gave in response to a doctor's suggestive questions about

sexual abuse was not so 'clear from the surrounding circumstances that the test of

cross-examination would be of marginal utility.' Id. at 820. Any reasonable

application of Wright's 'unifying principle' demonstrates that the victim's

statements in this case bore considerably less indicia of reliability than the

constitutionally inadmissible hearsay in Wright. Id. at 822. The minor victim

made the hearsay statements alleging sexual abuse under what the trial court

referred to as 'obviously coercive' conditions. After first claiming that no sexual

abuse occurred, the victim changed her story after her mother threatened to commit

suicide and offered to buy her new clothes. In light of the facts before the Court in

Wright, it was wholly unreasonable for the trial court here to find that the four-

year-old victim was 'particularly liµely to be telling the truth' after being

simultaneously threatened with the death of her mother and allured with the bribe

of shopping. 497 U.S. at 822.

      Accordingly, I dissent from the denial of habeas relief on Houff's

Confrontation claim. I agree with the majority, however, that the district court


                                           3
properly concluded that Houff's Sixth Amendment claim on his right to a jury trial

and proof beyond a reasonable doubt as to facts supporting his dangerous offender

sentence enhancement is procedurally barred, and therefore I concur in the

majority's disposition of that claim.




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