United States District Court, D. Oregon
OPINION AND ORDER
Aiken United States District Judge
filed an Amended Petition for Writ of Habeas Corpus under 28
U.S.C. § 2254, challenging his sexual abuse convictions
on grounds that his counsel rendered ineffective assistance
at trial. For the reasons discussed below, the petition is
November 2005, after trial by jury, petitioner was convicted
of six counts of Sexual Abuse in the First Degree, four
counts of Sodomy in the First Degree, and one count of
Attempted Sodomy in the First Degree. Resp't Ex. 101. The
charges arose from petitioner's abuse of his twin sons
when they were approximately ten years old. Resp't Ex.
102; Transcript of Proceedings (Tr.) 41.
the State presented last its witness at trial, the trial
court asked petitioner's counsel whether petitioner would
be testifying. Trial counsel answered that petitioner would
not be testifying. Tr. 733. Following closing statements, the
jury returned guilty verdicts on all counts. Tr. 848-51;
Resp't Ex. 101.
sentencing, petitioner maintained that the accusations were
false and the witness testimony was contradictory. He
continued, "And the only way that I could - I could even
possibly defend myself is by being on that stand, which we
all know I never got there." Tr. 869. When the trial
court responded, "And I presume that's because of
your six prior felony convictions and your four misdemeanors,
" petitioner replied, "No. Actually, I was willing
to get on the stand." Tr. 869. Ultimately, the trial
court imposed 100-month consecutive sentences on each
conviction for Sodomy; a 45-month consecutive sentence on the
conviction for Attempted Sodomy; and 75-month sentences on
each conviction for Sexual Abuse, with two of the sentences
to be served consecutively. Tr. 870-71. In all, the trial
court imposed a total of 595 months' imprisonment. Tr.
871; Resp't Ex. 101.
direct appeal, petitioner asserted that the trial court
committed error by "failing to obtain a personal,
unequivocal waiver of defendant's right to testify"
and by "imposing consecutive sentences." Resp't
Ex. 103 at 10, 14. The Oregon Court of Appeals affirmed
without opinion, and the Oregon Supreme Court denied review.
Resp't Exs. 106-07.
filed a petition for post-conviction relief (PCR) alleging
seventy-two claims for relief. Resp't Ex. 108. The PCR
court issued findings of fact and denied relief. Resp't
Ex. 175. Petitioner appealed the PCR court's ruling and
asserted forty-nine assignments of error. Resp't Ex. 177.
The Oregon Court of Appeals affirmed without opinion, and the
Oregon Supreme Court denied review. Resp't Exs. 180-81.
January 26, 2015, petitioner filed a federal petition seeking
habeas relief. Subsequently, petitioner was appointed
counsel, and on January 30, 2016, he filed an amended habeas
amended petition, petitioner asserts thirty-eight grounds for
relief. (ECF No. 29) However, petitioner's counseled
brief addresses only Ground 20, and his pro se brief appears
to argue only Grounds 2, 5, 6, 7, 8, 9, and 23-27. (ECF Nos.
46, 62) With respect to his remaining grounds, petitioner
submits no argument and fails to meet his burden of showing
that he is entitled to habeas relief. See Mayes v.
Premo, 766 F.3d 949, 957 (9th Cir. 2014) (a habeas
petitioner bears the burden of proving his claims).
respect to the claims that were briefed, respondent argues
that petitioner failed to fairly present the federal nature
of his claims to the Oregon courts, and they are unexhausted
and procedurally barred as a result. Alternatively,
respondent argues that the PCR court's decision rejecting
these claims was reasonable and entitled to deference.
Regardless of exhaustion, I find that petitioner is not
entitled to habeas relief. See 28 U.S.C. §
2254(b)(2) ("An application for a writ of habeas corpus
may be denied on the merits, notwithstanding the failure of
the applicant to exhaust the remedies available in the courts
of the State.").
court rejected petitioner's claims of ineffective
assistance of trial counsel on their merits, and that
decision was affirmed. Resp't Ex. 175. A federal court
may not grant a habeas petition regarding any claim
"adjudicated on the merits" in state court, unless
the state court ruling "was contrary to, or involved an
unreasonable application of, clearly established Federal
law." 28 U.S.C. § 2254(d)(1). A state court
decision is "contrary to" established federal law
if it fails to apply the correct Supreme Court authority, or
if it reaches a different result in a case with facts
"materially indistinguishable" from relevant
Supreme Court precedent. Brown v. Pqyton, 544 U.S.
133, 141 (2005); Williams v. Taylor, 529 U.S. 362,
405-06 (2000). A state court decision is an
"unreasonable application" of clearly established
federal law if the state court identifies the correct legal
principle but applies it in an "objectively
unreasonable" manner. Woodford v. Visciotti,
537 U.S. 19, 24-25 (2002) (per curiam); Williams,
529 U.S. at 407-08, 413; see also Early v. Packer,
537 U.S. 3, 11 (2002) (per curiam) (state court decisions
that are not "contrary to" Supreme Court precedent
may be set aside only "if they are not merely erroneous,
but 'an unreasonable application' of clearly
established federal law, or are based on 'an unreasonable
determination of the facts.'").
well-established Supreme Court precedent, a prisoner alleging
ineffective assistance of counsel must show that 1)
"counsel's performance was deficient, " and 2)
counsel's "deficient performance prejudiced the
defense." Strickland, 466 U.S. at 687.
"The proper measure of attorney performance remains
simply reasonableness under prevailing professional
norms." Id. at 688. With respect to prejudice,
the "defendant must show that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome."
Id. at 694. "Unless a defendant makes both