United States District Court, D. Oregon
Kristina Hellman Federal Public Defenders, Attorney for
F. Rosenblum Frederick M. Boss Samuel A. Kubernick Department
of Justice, Attorneys for Respondent
OPINION & ORDER
A. HERNÁNDEZ, United States District Judge
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.
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.
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
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.
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.
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