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Harbert v. T. Bowser

United States District Court, D. Oregon

March 4, 2019

NATHANIEL HARBBERT, Petitioner,
v.
T. BOWSER, Respondent.

          Thomas J. Hester Assistant Federal Public Defender Attorney for Petitioner

          Ellen F. Rosenblum, Attorney General Samuel A. Kubernick, Assistant Attorney General Department of Justice Attorneys for Respondent

          OPINION AND ORDER

          Marco A. Hernandez, United States District Judge.

         Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his state-court convictions for Rape and Tampering With a Witness. For the reasons that follow, the Petition for Writ of Habeas Corpus (#10) is denied.

         BACKGROUND

         Following a bench trial in Marion County in 2009, the Circuit Court found Petitioner guilty of two counts of Rape in the Second Degree and one count of Tampering With a Witness. As a result, the trial court sentenced him to 175 months in prison.

         Petitioner took a direct appeal where his attorney filed a Balfour brief that did not raise any issues for appellate consideration.[1] Respondent's Exhibit 109. The Oregon Court of Appeals affirmed the trial court's decision without opinion. State v. Harbert, 243 Or.App. 644, 257 P.3d 432 (2011).

         Petitioner next filed for post-conviction relief ("PCR") in Umatilla County where the PCR court denied relief on all of his claims. Respondent's Exhibit 142. The Oregon Court of Appeals affirmed the PCR court's decision in a written opinion, and the Oregon Supreme Court denied review. Harbert v. Franke, 28 4 Or.App. 374, 393 P.3d 243, rev. denied, 361 Or. 800, 400 P.3d 324 (2017).

         Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on December 1, 2017, and the Court appointed the Federal Public Defender to represent him. With the assistance of counsel, Petitioner argues his Ground Two claim that trial counsel was constitutionally ineffective when he failed to limit impeachment evidence in conformance with applicable state laws. Respondent argues that the claim is procedurally defaulted, and that Petitioner is unable to excuse his default.

         DISCUSSION

         I. Unargued Claims

         In his original Petition and Amended Petition, Petitioner raises five grounds for relief. With the assistance of appointed counsel, he chooses to argue his Ground Two claim pertaining to trial counsel's alleged failure to limit impeachment evidence at trial. Petitioner does not argue the merits of his remaining claims, nor does he address any of Respondent's arguments as to why relief on these claims should be denied. As such, Petitioner has not carried his burden of proof with respect to these unargued claims. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (Petitioner bears the burden of proving his claims).

         II. Failure to Limit Impeachment Evidence

         At issue in this case is Petitioner's contention that his trial attorney failed to grasp the evidentiary rules limiting impeachment by prior convictions and specific incidents of conduct. A petitioner seeking habeas relief must exhaust his claims by fairly presenting them to the state's highest court, either through a direct appeal or collateral proceedings, before a federal court will consider the merits of habeas corpus claims pursuant to 28 U.S.C. § 2254. Rose v. Lundy,455 U.S. 509, 519 (1982). The exhaustion doctrine is designed "to avoid the unnecessary friction between the federal and state court systems that would result if a lower federal court upset a ...


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