United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
MICHAEL W. M0SMAN, CHIEF UNITED STATED-DISTRICT JUDGE.
April 17, 2019, Magistrate Judge Jolie Russo issued her
Findings and Recommendation (F&R) , recommending that
I deny Kory Pedersen's Amended Petition for Writ of
Habeas Corpus . Mr. Pedersen filed Objections to the
F&R  and Respondent Christine Popoff filed a Response
to Mr. Pedersen's Objections . For the reasons below,
I adopt Judge Russo's F&R in full.
magistrate judge makes only recommendations to the court, to
which any party may file written objections. The court is not
bound by the recommendations of the magistrate judge but
retains responsibility for making the final determination.
The court is generally required to make a de novo
determination regarding those portions of the report or
specified findings or recommendation as to which an objection
is made. 28 U.S.C. § 636(b)(1)(C). However, the court is
not required to review, de novo or under any other standard,
the factual or legal conclusions of the magistrate judge as
to those portions of the F&R to which no objections are
addressed. See Thomas v. Am, 474 U.S. 140, 149
(1985); United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003). While the level of scrutiny under which
I am required to review the F&R depends on whether or not
objections have been filed, in either case, I am free to
accept, reject, or modify any part of the F&R. 28 U.S.C.
Russo found that Mr. Pedersen has not shown that he is
entitled to habeas corpus relief on his claim of ineffective
assistance of trial counsel. F&R  at 11. Mr.
Pedersen, who was convicted of Attempted Aggravated Murder
after firing twice at a Lincoln County Deputy Sheriff, argued
that his trial counsel was ineffective in two ways. First,
Mr. Pedersen claimed that trial counsel was ineffective in
failing to present a theory that the first shot he fired at
the Deputy qualified as an act of self-defense. Trial counsel
had argued that the first shot was a warning shot, aimed away
from the Deputy. If the first shot was intended only as a
warning, Mr. Pederson would not have been guilty of attempted
murder. Although the jury was instructed on self-defense and
trial counsel argued that the jury should acquit based on
self-defense, Mr. Pederson argues that his counsel was
ineffective in failing to argue that a warning shot also
supported a theory of self-defense. Objs.  at 10.
Mr. Pedersen claimed that his trial counsel was ineffective
in failing to obtain additional experts to bolster his claim
that the second shot fired at the Deputy was unintentional.
After Mr. Pederson fired the first shot, the Deputy returned
fire, hitting Mr. Pederson in his shooting hand. Mr. Pederson
claims that his injury caused an involuntary trigger pull,
which resulted in the second bullet fired at the Deputy. A
private investigator testified at trial that it was
"very possible" that the Deputy's bullet could
have caused Mr. Pedersen to unintentionally fire his gun. Tr.
state postconviction review (PCR) court found that additional
witnesses would have been useful in establishing the
involuntariness of the second shot, but that the jury was not
required to believe that the first shot was only meant to be
a warning. And testimony by additional experts
"couldn't help [Petitioner] a bit with the question
of the first shot, which was clearly intentionally
fired." Resp't Answer  Ex. 2 at 11-12. The PCR
court therefore denied Mr. Pederson's claim that his
counsel was constitutionally ineffective. Applying the
standard of review for a state prisoner asserting an
ineffective assistance of counsel claim, Judge Russo found
that the PCR court's decision was not unreasonable and
was supported by the record. F&R  at 10; see also
Id. at 9 ("When § 2254(d) applies, the
question is not whether counsel's actions were
reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland's
deferential standard.") (quoting Harrington v.
Richter, 562 U.S. 86, 105 (2011)).
Pedersen quotes State v. Strye for the proposition
that a defendant need not "intend to cause, or actually
cause, any injury to another person to pursue self-defense,
it is only necessary that the defendant act intentionally in
a manner designed to prevent themselves from being harmed by
another's unlawful use of force." Objs.  at 14
(citing 356 P.3d 1165, 1168 (Or. App. 2015)). While this
statement of Oregon law highlights the tension between trial
counsel's testimony that he pursued a theory that the
first shot was a warning rather than self-defense, it does
not demonstrate that habeas corpus relief is appropriate. As
Judge Russo stated in her F&R, even if Mr. Pederson had
established that trial counsel's conduct fell below an
objective standard of reasonableness, he must also have
demonstrated that he was prejudiced by that deficiency.
F&R  at 10. In other words, he needed to demonstrate
that "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different." F&R  at 8
(quoting Strickland v. Washington, 466 U.S. 668, 694
(1984)). I agree with Judge Russo that the PCR court
reasonably found that the result of the proceeding would not
have been different had counsel delivered a more convincing
argument on a theory of self-defense.
court's most fundamental holding was that the jury did
not believe Mr. Pedersen's testimony that his first shot
was fired as a warning. The jury instead found that Mr.
Pedersen shot at the Deputy, which would be justifiable as
self defense only if, (1) the Deputy made an arrest
"with excessive force," and (2) Mr. Pedersen
"reasonably believe[d] that the arresting officer was
about to use deadly force against him." Trial Tr. 
Ex. 3 at 1156. Although trial counsel did not argue that Mr.
Pedersen was justified in shooting at the Deputy, the
decision not to make this argument was based on a reasoned
analysis of the facts of the case. In a deposition taken as
part of the state postconviction review proceedings, trial
counsel stated that he believed Mr. Pedersen would have been
justified in firing at the deputy had Mr. Pedersen known that
the Deputy was engaged in a felonious assault by acting in
violation of his police training. Answer [26-1] Ex. 116 at
27. Trial counsel also stated, however, that Mr. Pedersen
"had no idea what police training procedures were,"
and therefore Mr. Pedersen did not reasonably believe that
the Deputy's use of force was felonious. Id.
Trial counsel explained that he considered presenting
evidence that the Deputy did not follow training procedure in
his encounter with Mr. Pedersen but decided against it
because he anticipated that (1) the prosecutor would object,
and (2) the trial court would have ruled that such testimony
was irrelevant to Mr. Pedersen's state of mind.
Id. at 29. This rationale belies Mr. Pedersen's
contention that his trial counsel failed to perceive that
there was a viable argument for self-defense in this case.
Because the PCR court made a reasonable determination that
trial counsel did not violate the standard set forth in
Strickland with respect to presenting a theory of
self-defense, I agree with Judge Russo's finding that Mr.
Pedersen is not entitled to habeas corpus relief on this
court also addressed Mr. Pedersen's second basis for
claiming ineffective assistance of trial counsel: that trial
counsel was ineffective in not presenting additional expert
testimony on whether the second shot was an "accidental
discharge" resulting from Mr. Pedersen's involuntary
reaction to being shot in the hand. The PCR court noted that
additional experts could have helped develop that theory but
that there was no reasonable probability that additional
experts would have changed the result of the proceeding
because Mr. Pedersen intentionally fired the first shot. I
agree with Judge Russo that the PCR court reasonably
determined that trial counsel was not ineffective in failing
to bolster the "accidental discharge" theory with
additional experts. Mr. Pedersen is therefore not entitled to
habeas corpus relief on this claim.
reasons described above, I adopt the F&R  as my own
opinion. The Amended Petition for Writ of Habeas Corpus 
is DENIED. Because Petitioner has not made a substantial
showing of the denial of a constitutional right,
Petitioner's request for ...