United States District Court, D. Oregon
For Petitioner: KRISTINA HELLMAN, Assistant Federal Public Defender, Portland, OR.
For Respondent: ELLEN F. ROSENBLUM, Attorney General, KRISTEN E. BOYD, Assistant Attorney General, Department of Justice, Salem, OR.
FINDINGS AND RECOMMENDATION
John V. Acosta, Unite States Magistrate Judge.
Petitioner, an inmate at the Oregon State Correctional Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Petition for Writ of Habeas Corpus (#1) should be DENIED,
On September 12, 2006, a Linn County grand jury indicted Petitioner on two counts each of Unlawful Delivery of Methamphetamine to a Person Under 18 Years of Age; Sexual Abuse in the First Degree; and Rape in the Second Degree. The charges were based upon an alleged relationship between Petitioner and a 13-year-old girl.
Petitioner waived his right to a jury trial and the case was tried to the court. Following the bench trial, the trial judge found Petitioner guilty of two counts of Rape in the Second Degree and one count of Unlawful Delivery of Methamphetamine to a Person Under 18 Years of Age. The trial judge acquitted Petitioner on the remaining charges. The trial judge sentenced Petitioner to 75 months of imprisonment on each of the rape counts and 20 days on the delivery of methamphetamine count. The judge ordered the 20-day sentence to run concurrently, and 30 months of the second rape sentence to run concurrently, so the term of imprisonment totaled 120 months.
Petitioner filed a direct appeal. The Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. State v. Medford, 227 Or.App. 642, 206 P.3d 1222, rev. denied, 346 Or. 343, 213 P.3d 578 (2009).
Petitioner then sought state post-conviction relief (" PCR"). Following an evidentiary hearing, the PCR trial judge denied relief. On appeal, the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Medford v. Premo, 250 Or.App. 570, 284 P.3d 599, rev. denied, 352 Or. 600, 292 P.3d 74 (2012).
On November 30, 2012, Petitioner filed his Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 in this Court. Petitioner alleges two claims of ineffective assistance of trial counsel:
Petitioner was deprived of effective assistance of trial counsel failed to [sic]: (1) Move for a judgment of acquittal on count 4 on grounds that the State failed to prove beyond a reasonable doubt that Petitioner delivered the controlled substance methamphetamine to the alleged victim; (2) Advise Petitioner that because the alleged victim was 13 years old, he had no statutory affirmative defense to counts 2, 3, 5, and 6 based upon his perception of the alleged victim[']s age. Petitioner could not meaningfully consider the State[']s pretrial offer and rejected it when he otherwise would have accepted it.
Petitioner addresses only the second claim in his Brief in Support of Petition for Writ of Habeas Corpus. Respondent argues Petitioner fails to meet his burden of proof on the un-briefed claim, and that the PCR court decision denying relief on the second claim was not contrary to or an unreasonable application of clearly established federal law.
I. Deference to State Court Decision
Under 28 U.S.C. § 2254(d), an application for a writ of habeas corpus shall not be granted unless the adjudication on the merits in State court:
(1) was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence ...