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Brewer v. Taylor

United States District Court, D. Oregon

March 28, 2017

CALEB BREWER, Petitioner,
v.
JERRI TAYLOR, Superintendent, Two Rivers Correctional Inst., Respondent.

          Kristina Hellman Federal Public Defenders, Attorney for Petitioner

          Ellen F. Rosenblum Frederick M. Boss Samuel A. Kubernick Department of Justice, Attorneys for Respondent

          OPINION & ORDER

          MARCO A. HERNÁNDEZ, United States District Judge

         Petitioner, an inmate at the Two Rivers Correctional Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. Magistrate Judge John Acosta issued his Findings and Recommendation (“F&R”) on October 20, 2016, recommending that Petitioner's Amended Petition for Writ of Habeas Corpus be denied. ECF 37. Petitioner timely filed his objections to the F&R. ECF 42. The Court declines to adopt the F&R and orders that the Amended Petition for Writ of Habeas Corpus be GRANTED.

         BACKGROUND

         At this point, the parties are well versed in the facts giving rise to Petitioner's conviction; a detailed recitation of the factual background can be found in Judge Acosta's F&R and the Court will not repeat it here.

         A jury convicted Petitioner on two charges of Attempted Murder and the trial judge sentenced him to 180 months of imprisonment followed by a period of post-prison supervision. Petitioner alleges an ineffective assistance of counsel claim on the basis that his “trial attorney failed to take exception to the trial court's refusal to instruct the jury that Menacing constitutes a lesser-included offense of Attempted Murder, thereby precluding appellate review of the issue.” Pet. Br. at 15, ECF 23. The post-conviction relief (“PCR”) court denied relief stating:

I'm denying post-conviction relief. I'm finding that the [trial] Court made it clear that it wasn't going to give any [lesser-included offense instructions] on the Attempted Murder.
The attorney did not except and decided instead to argue all or nothing on Attempted Murder. That was not an unreasonable strategy decision based on the facts presented in this case. . . .
The appellate attorney could not raise the [lesser-included offense] menacing since the issue was not preserved. Therefore, there's no inadequacy or any prejudice on the part of the appellate attorney.
And. Finally, there's insufficient evidence of any inadequacy or any prejudice by trial attorney.

Resp. Ex. 125 at 14-15, ECF 16. Petitioner argues that his claim is entitled to de novo review as opposed to the deferential review under 28 U.S.C. § 2254(d), because his claim was not “adjudicated on the merits.” Petitioner asserts that the PCR court misconstrued the link between the claimed error and the resulting prejudice. Specifically, that the “PCR judge analyzed the claim by asking whether the trial court would have changed its ruling had Petitioner's attorney taken exception, instead of asking whether Petitioner would be precluded from pursuing an issue on appeal.” F&R at 7. The F&R found that, notwithstanding the PCR court's error, Petitioner's claim was “adjudicated on the merits” and he was not entitled to de novo review. F&R at 8. Applying deferential review under § 2254, the F&R found that Petitioner's ineffective assistance of counsel claim failed and he was not entitled to habeas relief. Id.at 14-15. Finally, the F&R recommended that Petitioner should be denied a certificate of appealability because he failed to make a substantial showing of the denial of a constitutional right. Id. at 15.

         Petitioner made three objections to the F&R. First, he renewed his argument that the PCR court did not adjudicate his claim “on the merits” and he was entitled to de novo review. Obj. to F&R at 1-2. Second, Petitioner objected to the F&R's finding that he would not have prevailed on appeal had he preserved a challenge to the denial of the Menacing instruction. Id. at 3. Third, Petitioner objected to the F&R's recommendation to deny his certificate of appealability.

         STANDARD

         When a party objects to any portion of the Magistrate Judge's F&R, the district court must make a de novo determination of that portion of the Magistrate Judge's report. 28 U.S.C. § 636(b)(1); Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009); United ...


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