United States District Court, D. Oregon
OPINION AND ORDER
Michael McShane United States District Judge.
brings this petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 alleging prosecutorial misconduct and
post-conviction trial court error. Petitioner also seeks to
assert a claim of ineffective assistance of counsel. For the
reasons explained below, the petition is denied.
was charged with the criminal mistreatment and assault of M,
his eight-week-old child. Defendant lived with M, her mother,
Michelle Nelson, and Nelson's two other children in
Klamath County. At trial, Nelson testified that she left M
alone with defendant while she attended to her two older
children, and she began to notice marks and bruises on M.
Transcript of Trial Proceedings, Jan. 13, 2004 (Tr.) at
128-142. Eventually, M was taken to the hospital and
examined. Dr. Calvert was the physician who reviewed M's
x-rays. Dr. Calvert testified at trial that M had broken
ribs, a linear skull fracture, and a chipped leg bone. Tr.
207-09, 213. He opined that the rib and leg injuries were
consistent with a child who had been gripped by the torso and
shaken, and that the skull fracture was likely caused by the
use of blunt force against a hard surface. Tr. 210-218. Dr.
Calvert did not believe the injuries to be accidental and he
diagnosed M with “shaken baby syndrome.” Tr.
defense focused on whether Nelson, rather than petitioner,
was responsible for M's injuries. Resp. Ex. 131. Trial
counsel also challenged whether M's injuries supported
the diagnosis of shaken-baby syndrome, though counsel did not
consult or call any outside experts to counter Dr.
Calvert's conclusions. Tr. 231-233, 241; Resp. Ex. 131
(affidavit of trial counsel indicating that he reviewed
materials provided at a conference and did not consult
jury found petitioner guilty of one count of Assault in the
First Degree and three counts of Criminal Mistreatment in the
First Degree. They acquitted petitioner of Assault in the
Second Degree and a remaining count of criminal mistreatment.
Tr. 352-53. At sentencing, the trial court imposed
consecutive, upward departure terms for a total of 192
months' imprisonment. Transcript of Sentencing
Proceedings, Mar. 16, 2004, at 11-14.
directly appealed his conviction and sentence. Resp. Ex. 102.
The Oregon Court of Appeals affirmed in a written opinion,
and the Oregon Supreme Court denied review. Resp. Ex. 105,
107-08. Petitioner also filed a petition for post-conviction
relief (PCR) and alleged claims of ineffective assistance of
trial counsel based on the failure to obtain and present
expert testimony. Resp. Ex. 121 at 11-12.
the PCR proceedings, petitioner's PCR counsel retained
experts to review the medical evidence and render opinions
regarding M's injuries and the diagnosis of shaken-baby
syndrome. PCR counsel encountered difficulty in obtaining
some of M's medical records and the timely assistance of
experts, and the PCR court denied counsel's request for a
trial continuance to allow experts to review the evidence.
Resp. Ex. 125-28; Resp. Ex. 135 at 4-6, 22. Ultimately, the
PCR court denied relief and found that trial counsel was
reasonable in choosing a trial strategy focused on the source
of injury rather than the cause of injury. Resp. Ex. 135 at
32; Resp. Ex. 136.
counsel appealed the denial of the motion for continuance and
did not appeal the substance of the PCR court's rulings.
Resp. Ex. 137. The Oregon Court of Appeals affirmed without
opinion, and the Oregon Supreme Court denied review. Resp.
March 26, 2015, petitioner filed the instant petition seeking
federal habeas relief under 28 U.S.C. § 2254.
Ground One of his federal pro se petition, petitioner asserts
that his “conviction was obtained by unconstitutional
failure of the prosecution to disclose to the defendant
evidence favorable to the defendant.” (ECF #2)
Respondent argues that this claim is non-exhausted and
procedurally defaulted, and petitioner agrees. Pet's Br.
at 6, n.1; 28 U.S.C. § 2254(b)(1)(A); see also
Baldwin v. Reese, 541 U.S. 27, 29 (2004); Duncan v.
Henry, 513 U.S. 364, 365-66 (1995) (per curiam).
Accordingly, federal habeas review of this claim is barred by
procedural default. Coleman v. Thompson, 501 U.S.
722, 732, 735 n.1 (1991); Sandgathe v. Maass, 314
F.3d 371, 376 (9th Cir. 2002).
Ground Two of his federal petition, petitioner claims that
“there are experts that we could use to help use in our
defense” and his PCR attorney “wanted time to
allow two (2) experts to help in my case. We just needed this
time.” (ECF #2) Petitioner's claim seemingly
challenges the PCR court's denial of his request for
continuance to allow experts to review the medical evidence.
Respondent maintains that a claim of PCR court error is not
cognizable on federal habeas review. Cooper v.
Neven, 641 F.3d 322, 331-32 (9th Cir. 2011) (holding
that post-conviction court procedures cannot be asserted as a
basis for relief in a federal habeas petition).
agrees that a procedural decision of a PCR court is not
reviewable. However, petitioner argues that the court should
construe Ground Two liberally as a claim of ineffective
assistance of PCR counsel to excuse the procedural default of
a claim for ineffective assistance of trial counsel. See
Martinez v. Ryan, 566 U.S. 1 (2012). Petitioner argues
that the ineffectiveness of his PCR counsel prevented him
from fully developing his claim that trial counsel was
ineffective for failing to present expert testimony.
Petitioner maintains that he could have “demonstrated
the inadequacy of the state's theories as to
‘shaken baby syndrome'” had PCR counsel