United States District Court, D. Oregon
OPINION AND ORDER
Miclael H. Simon United States District Judge
Brown Assistant Federal Public Defender 101 S.W. Main Street,
Suite 1700 Portland, Oregon 97204 Attorney for Petitioner
Ellen F. Rosenblum, Attorney General Kristen E. Boyd,
Assistant Attorney General Department of Justice 1162 Court
Street NE Salem, Oregon 97310 Attorneys for Respondents
SIMON, District Judge.
brings this habeas corpus case pursuant to 28 U.S.C. §
2254 challenging the legality of several state-court
convictions. For the reasons that follow, the Amended
Petition for Writ of Habeas Corpus (#1) is denied.
background facts, as stated by the Oregon Court of Appeals
during Petitioner's direct appeal, are as follows:
Defendant attended a party at the home of a neighbor in rural
Lincoln County. He began drinking beer and smoking marijuana
shortly after he arrived and continued to do so until around
10:00 p.m. when he and two friends decided to leave the party
to go to a bar. They started off in defendant's vehicle,
a 1972 sport utility vehicle that defendant used to go
"mudding." The vehicle had a roll bar, but no doors
and no top. Defendant was driving. Nobody was wearing a seat
belt, and defendant was carrying a cup of beer in one hand.
As he started down a hilly, wooded road, he lost control of
the vehicle. It hit a tree and rolled down a steep
embankment. All three occupants were injured and taken to a
hospital where one of the passengers died from his injuries.
Also at the hospital, a laboratory technician supervised a
test to determine defendant's blood alcohol content (BAC)
based on the alcohol content of his blood plasma, but not his
whole blood. That test showed a BAC of .086.
State v. Berliner, 232 Or.App. 539, 222 P.3d 744
Lincoln County Grand Jury indicted Petitioner on one count of
each of the following: Manslaughter in the First Degree,
Manslaughter in the Second Degree, Assault in the Third
Degree, Driving Under the Influence, Reckless Driving,
Recklessly Endangering Another, and Driving While Suspended.
Respondents' Exhibit 102. Petitioner's first trial
resulted in a hung jury, and the State re-tried him.
primary strategy was to establish that he had not actually
been the driver of the vehicle. Secondarily (and the focus of
this Opinion), he sought to challenge the State's
representation that his BAC exceeded Oregon's legal limit
of .08. The vehicular accident occurred at 10:10 p.m. The
hospital performed a plasma test of Petitioner's blood at
11:50 pm and reported a .086 BAC result. Authorities obtained
a warrant for two additional blood draws which the Oregon
State Crime Lab analyzed using a "whole blood"
method and found Petitioner's BCA to be .02 at 1:15 a.m.
and .01 at 2:20 a.m.
trial, the State offered only the 11:50 p.m. hospital .086
BAC result to establish that Petitioner was intoxicated at
the time of the accident. Petitioner's attorney called
Dr. Raymond Grimsbo, a forensic scientist, to testify about
the hospital's method of testing Petitioner's blood.
Dr. Grimsbo was prepared to testify that the hospital did not
use the whole blood "gold standard" of testing as
utilized by the Oregon State Crime Lab, and instead
determined BAC based- off of the plasma portion of the blood
sample only. The State objected to Dr. Grimsbo's
testimony before he could fully present it, and the
prosecutor examined Dr. Grimsbo outside the presence of the
Grimsbo was of the opinion that the plasma testing method
employed by the hospital would produce a result 15% higher
than the whole blood test used by the Crime Lab. He was
therefore prepared to testify that where the plasma-based
hospital test revealed a .086 BAC, when adjusted to reflect
gold standard testing where the plasma has not been
"spun off" from the whole blood, Petitioner's
BAC was actually .073, placing him below the legal limit of
.08. Trial Transcript, p. 1718. In the event the jury
concluded Petitioner was the driver of the vehicle, trial
counsel intended to demonstrate that he did not behave in a
manner that manifested an extreme indifference to the value
of human life so as to justify a Manslaughter conviction
because his BAC was within permissible limits.
trial judge repeatedly explained to Petitioner's attorney
that he needed to lay a proper foundation for the testimony,
that he needed to "draw that nexus between [Dr.
Grimsbo's] opinion and, urn, that which actually occurred
in this case on one level or another." Id. at
1751. The judge noted that his "comfort level, even now,
is being tested as far as what I've said, uh, because I
don't know that it's my role to provide the
answers." Id. at 1751-52. It appears the judge
was waiting for counsel to seek leave to admit the whole
blood tests from the Crime Lab, but counsel never did. The
judge ultimately refused to permit Dr. Grimsbo to testify for
lack of a proper foundation, id at 1759, the jury
convicted Petitioner on all counts, and the trial court
sentenced him to 120 months in prison.
his direct appeal, Petitioner argued in relevant part that:
(1) the evidence adduced from the BAC hospital test was
inadmissible because the testing was not done pursuant to
statutory requirements; and (2) the trial court erred when it
did not allow Dr. Grimsbo to testify that the .086 BAC was
artificially elevated because the test relied on blood
plasma, not whole blood. The Court of Appeals found that
although the issues "present interesting
questions," it did not need to address them because a
person is considered to be driving under the influence of
intoxicants in Oregon either with a .08 BAC, or if the person
is under the influence of liquor or a controlled substance.
It noted that Petitioner testified at trial not only that he
consumed ten cups of beer and smoked marijuana at the party,
but also that he was intoxicated and impaired when he left.
Berliner, 232 Or.App. at 545. It therefore concluded
that any error regarding the BAC was harmless. Petitioner
sought further review in the Oregon Supreme Court, which was
denied. 348 Or. 291, 231 P.3d 795 (2010).
next filed for post-conviction relief ("PCR") in
Umatilla County where he claimed that a competent trial
attorney would have recognized the exculpatory value of the
Crime Lab's whole blood tests and offered them as
evidence. The PCR court denied relief on this claim as well
as others not relevant to this habeas proceeding. The Oregon
Court of Appeals affirmed the PCR court's decision
without opinion, and the Oregon Supreme Court denied review.
Berliner v. Coursey, 266 Or.App. 229, 337 P.3d 204
(2014), rev. denied, 356 Or. 689, 344 P.3d 1111
filed this 28 U.S.C. § 2254 habeas corpus case on
September 21, 2015, and the Court appointed counsel to
represent him shortly thereafter. With the assistance of
counsel, Petitioner argues that he received ineffective
assistance of trial counsel when his attorney failed to: (1)
introduce valid, exculpatory BAC evidence in the form of the
Crime Lab results; (2) adequately object to the
hospital's plasma test; and (3) elicit relevant testimony
from Dr. Grimsbo regarding the invalid BAC evidence.
Petition for Writ of Habeas Corpus raises 19 grounds for
relief, and Petitioner's argued claims represent Grounds
Eight and Ten. Petitioner does not argue the merits of his
remaining claims in his briefing, nor does he address any of
Respondents' arguments as to why relief on these claims
should be denied. The Court has examined these claims on the
existing record and the pro se Petition and
concluded that Petitioner has not carried his burden of
proof. See Silva v. Woodford, 279 F.3d 825, 835 (9th
Cir. 2002) (Petitioner bears the burden of proving his
Claims Properly Before This Court
assert that Petitioner failed to fairly present his argued
claims that counsel failed to move to suppress the hospital
draw, or introduce expert testimony from Dr. Grimsbo
challenging the plasma test,  leaving them procedurally
defaulted. See Rose v. Lundy, 455 U.S. 509, 519
(1982) (requiring a habeas petitioner to present his claims
to a state's highest court in order to preserve them for
federal habeas review) . He directs this Court's
attention to the PCR Petition for Review filed in the Oregon
Supreme Court where Petitioner clearly framed the issue
presented as whether counsel was constitutionally ineffective
"for failing to offer the results of an exculpatory
blood alcohol test into evidence during a jury trial when the
test contradicts the results of a blood test offered by the
state and the defendant's level of intoxication is
directly at issue[.]" Respondents' Exhibit 142, p.
Petitioner points out, his argued claims are all
necessarily reliant upon whether counsel failed to
appreciate the significance of, and present evidence of, the
results from the Crime Lab blood testing. The Court views the
claim broadly to state that trial counsel's failure to
recognize the importance of the Crime Lab results and
introduce them prevented him from effectively presenting Dr.
Grimsbo's testimony so as to mount a challenge to the
State's plasma test result. Ill.
Standard of Review An application
for a writ of habeas corpus shall not be granted unless
adjudication of the claim in state court resulted in a
decision that was: (1) "contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United
States;" or (2) "based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding." 28 U.S.C. §
2254(d). A state court decision is "contrary to . . .
clearly established precedent if the state court applies a
rule that contradicts the governing law set forth in [the
Supreme Court's] cases" or "if the state court
confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a result different from [that]
precedent." Williams v. Taylor, 529 U.S. 362,
405-06 (2000) .
the "unreasonable application" clause of §
2254(d)(1), a federal habeas court may grant relief "if
the state court identifies the correct governing legal
principle from [the Supreme Court's] decisions but
unreasonably applies that principle to the facts of the
prisoner's case." Id. at 413. The
"unreasonable application" clause requires the
state court decision to be more than incorrect or erroneous.
Id. at 410.
U.S.C. § 2254(d) "preserves authority to issue the
writ in cases where there is no possibility fairminded
jurists could disagree that the state court's decision
conflicts with [the Supreme] Court's precedents. It goes
no farther." Harrington v. Richter, 562 U.S.
86, 102 (2011).
U.S.C. § 2254(d)(2) allows a petitioner to
"challenge the substance of the state court's
findings and attempt to show that those findings were not
supported by substantial evidence in the state court
record." Kibbler v. Benedetti,693 F.3d 1140,
1146 (9th Cir. 2012). A federal habeas court
cannot overturn a state court decision on factual grounds
"unless objectively unreasonable in light of the
evidence presented in the state-court proceeding."
Miller-El v. Cockrell,537 U.S. 322, 340 (2003).
This is a ""daunting standard-one that will be
satisfied in relatively few cases,' especially because we
must be "particularly deferential to our state-court