United States District Court, D. Oregon
J. Hester Assistant Federal Public Defender Attorney for
F. Rosenblum, Attorney General Samuel A. Kubernick, Assistant
Attorney General Department of Justice Attorneys for
OPINION AND ORDER
A. Hernandez, United States District Judge.
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
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
took a direct appeal where his attorney filed a
Balfour brief that did not raise any issues for
appellate consideration. 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).
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).
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
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).
Failure to Limit Impeachment
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