Brady v. Cueva

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

ROGER HOAN BRADY, Case No. 3:12-cv-00850-MC

Petitioner, OPINION AND ORDER

v.

DANIEL CUEVA, Warden of California

Medical Facility; JEFF MACOMBER,

Secretary of the California Department

of Corrections and Rehabilitation; and

ELLEN F. ROSENBLUM, Oregon Attorney

General,

Respondents.1

_____________________________________

MCSHANE, Chief Judge.

Petitioner brings this habeas action pursuant to 28 U.S.C. § 2254 challenging his state

court convictions for Aggravated Murder, Attempted Aggravated Murder, and Robbery in the

1 Subsequent to his Oregon convictions, Petitioner was extradited to California to face

charges of Aggravated Murder arising from the 1993 fatal shooting of a police officer. Petitioner

was found guilty and sentenced to death, and he remains incarcerated in California. Resp’t Ex.

101 at 5-6; People v. Brady, 50 Cal. 4th 547, 236 P.3d 312 (2010).

First Degree. Petitioner claims that the trial court erred in numerous respects and that his trial

and appellate counsel provided constitutionally ineffective assistance. Most of Petitioner’s

claims are unexhausted and procedurally defaulted, and Petitioner’s preserved claims were

denied by the Oregon courts in a decision that is entitled to deference. Petitioner fails to establish

entitlement to habeas relief, and the Second Amended Petition is DENIED.

BACKGROUND

On the night of August 3, 1994, Petitioner entered a Safeway store in Cedar Mill,

Oregon, dressed in a long hooded coat, gloves, and a ski mask. Transcript (Tr.) 923, 940, 952.2

As he entered the grocery store, Petitioner passed Catalina Correa, who was exiting. Correa

commented to another customer, “He’s got something in his pocket, and I’m not going to stick

around to find out what it is.” Tr. 944.

Petitioner approached a cashier, pulled out a semi-automatic handgun, and ordered the

cashier to open the till. Tr. 909-10. The cashier complied and Petitioner took $385.00 from the

till drawer and exited the store. Tr. 1321. As Petitioner walked to his car, he encountered Correa,

who was standing near the car. Petitioner shot Correa in the chest and in the back of her neck,

killing her. Tr. 960-63.

Andrew Dickson was entering the Safeway parking lot and witnessed Correa’s shooting.

Dickson observed Petitioner get into his vehicle and followed Petitioner as he drove away,

noting Petitioner’s license plate number. Tr. 983-85. After a short distance, Petitioner stopped his

vehicle and shot at Dickson’s van with a rifle, shattering the windshield. Tr. 986-87. Dickson

called the police from a nearby home and reported the shootings and Petitioner’s license plate

number. Tr. 990-91.

2 Citations to the transcript refer to the page numbers in the bottom right hand corner,

e.g., “Transcript, Page 923 of 3643.”

Police traced the license plate number to an apartment in Vancouver, Washington, where

Petitioner lived with his parents, Philip and Diep Brady. Tr. 1032-34, 1044-45. Police surveilled

the apartment and twice observed a man carrying trash bags walk from the area of Petitioner’s

apartment to a dumpster. Tr. 1046-48. Police searched the dumpster and recovered a tan jacket

and windbreaker. Tr. 1109-11.

The next morning, on August 4, 1994, police arrested Petitioner and searched his parents’

apartment. Tr. 1166-69. During the search, police found a locked, fireproof Industry safe under

the sink in the master bathroom. Tr 1141. Inside the safe, police discovered a pair of blue gloves,

a pair of gray wool gloves, a Davis P-380 semiautomatic pistol,.380 caliber ammunition, a box

of ammunition for a 7.62x39 caliber rifle, a ski mask, and a white envelope containing $1,000 in

cash. Tr. 1117-20. When questioned, Petitioner denied any involvement in the Safeway robbery.

On August 7, 1994, Diep Brady found a blue sleeping bag on the patio of their apartment,

with a locked case inside of the bag. The case contained an SKS Norenco brand 7.62x39 semi-

automatic rifle. Tr. 1083-85, 1116.

A ballistics expert determined that a shell casing found near Correa’s body had been fired

by the handgun found in the Industry safe in Petitioner’s apartment. Tr. 1227-28. The expert also

determined that a shell casing found on the street near Dickson's vehicle had been fired from the

SKS rifle found inside the blue sleeping bag. Tr. 1095, 1233-34.

Petitioner was charged by indictment with two counts of Aggravated Murder, two counts

of Attempted Aggravated Murder, and one count of Robbery in the First Degree. Resp’t Ex. 102.

The State sought the death penalty.

During the guilt phase of trial, Petitioner’s counsel focused on the requisite mental state

to commit Aggravated Murder and Attempted Aggravated Murder. Petitioner’s counsel argued

that the “robber” was surprised when he saw Correa standing near his car and that the State had

not proven the intent to shoot and kill her. Tr. 1404-07, 1417-19. Counsel similarly argued that

the State failed to prove that the robber attempted to kill Dickson rather than simply “scare him

off.” Tr. 1410, 1419-21. The jury found Petitioner guilty of all charged offenses. Tr. 1506-07.

During the penalty phase, Petitioner waived his right to seek a life sentence with the

possibility of parole and agreed that the jury could consider the penalties of death or life without

the possibility of parole. Tr. 3459-65. Before accepting Petitioner’s waiver, the trial court

explained the ramifications of his decision and confirmed that Petitioner understood his rights.

The jury recommended that Petitioner be sentenced to life without the possibility of

parole. Tr. 3595-97. The trial court merged the verdicts into one conviction for Aggravated

Murder and one conviction for Attempted Aggravated Murder and imposed a term of life in

prison without the possibility of parole and a consecutive, departure sentence of 120 months. Tr.

3629-38; Resp’t Ex. 101 at 8-11.

Petitioner directly appealed and challenged the trial court’s imposition of a “departure

sentence consecutive[] to a life sentence without possibility of parole.” Resp’t Ex. 103 at 2. The

Oregon Court of Appeals affirmed without opinion and Petitioner did not seek review with the

Oregon Supreme Court. Resp’t Ex. 105.

Petitioner then sought post-conviction relief (PCR) in state court. Petitioner asserted nine

claims of ineffective assistance of appellate counsel, twenty-seven claims of ineffective

assistance of trial counsel, and seventy-one claims of trial court error. Resp’t Ex. 106. The PCR

court denied relief on all claims. Resp’t Exs. 160, 162. On PCR appeal, Petitioner challenged

only the denial of five claims asserting the ineffective assistance of trial and appellate counsel.

Resp’t Exs. 163, 166. The Oregon Court of Appeals affirmed without opinion and the Oregon

Supreme Court denied review. Resp’t Exs. 168-69.

During the investigation of Correa’s murder, police detectives discovered evidence

connecting Petitioner to the 1993 fatal shooting of a police officer in Manhattan Beach,

California. Tr. 1535, 1575-76, 1597. After being tried in Oregon, Petitioner was extradited to

California to face Aggravated Murder charges. The California jury returned a guilty verdict and

recommended the death penalty, finding Petitioner’s Oregon murder conviction to be one of

several aggravating factors. See People v. Brady, 50 Cal. 4th 547, 236 P.3d 312 (2010). The trial

court followed the jury’s recommendation and imposed a sentence of death. Id. On direct appeal,

Petitioner’s conviction and sentence were upheld. Petitioner then sought post-conviction relief

and his California post-conviction proceeding remains pending. See Pet’r Status Report (ECF

No. 136); Pet’r Response to OSC (ECF No. 87).

On February 24, 2012, Petitioner sought federal habeas relief in this action. In February

of 2014, Petitioner asked that this case be stayed until he was appointed counsel in his California

post-conviction action, so that California counsel could confer and coordinate with federal

habeas counsel in this action. The Court granted the request and entered a stay. For several years,

Petitioner reported that he had yet to be appointed counsel in his California proceeding, and the

stay remained in effect.

As of November 2023, counsel still had not been appointed in Petitioner’s California post-

conviction action, and the Court lifted the stay.3 Petitioner filed a Second Amended Petition and

the parties submitted briefing. The Second Amended Petition is now ripe for review.

3 The Governor of California imposed a moratorium on executions and the State’s death

row has been dismantled. As of March 2021, Petitioner was no longer housed on death row and

had moved to a new institution. See Pet’r Status Report dated March 11, 2021 (ECF No. 120).

DISCUSSION

Petitioner asserts eighteen Grounds for Relief in his Second Amended Petition. See

generally Sec. Am. Pet. (ECF No. 146). Respondent argues that, because Petitioner presented

only five subparts of Ground Six to the Oregon courts, his remaining claims are procedurally

defaulted and barred from federal review. Respondent further argues that the PCR court

reasonably rejected Petitioner’s exhausted claims and that its decision is entitled to deference.

A. Exhaustion and Procedural Default

“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available

state remedies, thereby giving the State the opportunity to pass upon and correct alleged

violations of its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal

quotation marks and citation omitted). To meet the exhaustion requirement, a petitioner must

present all federal constitutional claims to the State’s highest court before seeking federal habeas

relief. Id.; Cooper v. Neven, 641 F.3d 322, 326 (9th Cir. 2011) (“Exhaustion requires the

petitioner to ‘fairly present’ his claims to the highest court of the state.”). “A petitioner fully and

fairly presents a claim to the state courts if he presents the claim (1) to the correct forum; (2)

through the proper vehicle; and (3) by providing the factual and legal basis for the claim.” Scott

v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009) (per curiam) (internal citations omitted).

If a claim was not fairly presented to the state courts and no state remedies remain

available for the petitioner to do so, the claim is barred from federal review through procedural

default. See Coleman v. Thompson, 501 U.S. 722, 732, 735 n.1 (1991); Sandgathe v. Maass, 314

F.3d 371, 376 (9th Cir. 2002) (“A procedural default may be caused by a failure to exhaust

federal claims in state court.”). A federal court may consider unexhausted and procedurally

barred claims only if the petitioner demonstrates cause for the default and actual prejudice, or if

the lack of federal review would result in a “fundamental miscarriage of justice.” Edwards v.

Carpenter, 529 U.S. 446, 451(2000); Coleman, 501 U.S. at 750.

On direct appeal, Petitioner challenged only the trial court’s imposition of a “departure

sentence consecutively to a life sentence without possibility of parole.” Resp’t Ex. 103 at 2. The

Oregon Court of Appeals affirmed without opinion and Petitioner did not seek review with the

Oregon Supreme Court. Resp’t Ex. 105.

On PCR appeal, Petitioner challenged the PCR court’s denial of five claims alleging the

ineffective assistance of trial and appellate counsel, and these claims correspond with Grounds

Six(D)(2),(3), Six(E), Six(G)(2), and Six(H) in Petitioner’s Second Amended Petition. See

Resp’t Exs. 163, 166-67. Petitioner did not fairly present his remaining Grounds for Relief to

Oregon’s highest court, either on direct or PCR appeal. Petitioner can no longer exhaust these

claims and they are procedurally defaulted.

Petitioner does not dispute that these claims are unexhausted or assert cause and

prejudice to excuse their procedural default.4 Rather, Petitioner simply states that they are

“arguably” exhausted without presenting a legal or factual basis for this contention. See Pet’r

Brief at 46. Accordingly, Grounds One through Five, Grounds Six(A)-(C), (D)(1),(4)-(8), (F),

(G)(1),(3), and (H), and Grounds Seven through Eighteen are unexhausted and barred from

federal review through procedural default.5

4 In his Second Amended Petition, Petitioner contends that the procedural default of his

claims should be excused under the “miscarriage of justice” exception based on his actual

innocence. Sec. Am. Pet. at 9. Petitioner does not argue this claim in his supporting brief and

fails to present new evidence showing the likelihood that no reasonable juror would have found

Petitioner guilty beyond a reasonable doubt. Schlup v. Delo, 513 U.S. 298, 315, 327 (1995).

5 Even though Petitioner did not dispute his failure to exhaust all claims of trial court

error, Petitioner presents argument in support of Grounds Five and Ten, which allege equal

protection and due process violations arising from the improper exclusion of a juror under

Batson v. Kentucky and the erroneous admission of character testimony by Correa’s daughter,

B. Deference to State Court Decisions

Petitioner’s exhausted Grounds for Relief allege that trial counsel provided ineffective

assistance by: 1) failing to object to testimony about Correa’s life and character; 2) stipulating to

the prepared testimony of Diep Brady; and 3) waiving Petitioner’s right to have the jury consider

life with the possibility of parole and failing to adequately advise him about that right. See Sec.

Am. Pet. at 7-8. Petitioner also alleges that appellate counsel was ineffective by failing to assign

error to the denial of Petitioner’s Batson objection and failing to ensure that the appellate record

included a transcript of voir dire. Id. at 8. The PCR court rejected these claims on the merits and

Respondent argues that its decision is entitled to deference.

Pursuant to 28 U.S.C. § 2254(d), this Court may not grant a petition for a writ of habeas

corpus filed by a state prisoner with respect to any claim that was adjudicated on the merits in

state court, unless the adjudication resulted in a decision that was “contrary to, or involved an

unreasonable application of, clearly established Federal law” or “resulted in a decision that was

based on an unreasonable determination of the facts in light of the evidence presented.” 28

U.S.C. § 2254(d)(1) and (2).

A state court decision is “contrary to” clearly established federal law if it fails to apply

the correct Supreme Court authority or reaches a different result in a case with facts “materially

indistinguishable” from relevant Supreme Court precedent. Brown v. Payton, 544 U.S. 133, 141

(2005); Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision is an

Esperanza Hursh. Pet’r Brief at 21-32, 43-46. Petitioner asserts that Grounds Five and Ten are

reviewable because they were exhausted as claims alleging the ineffective assistance of counsel.

Petitioner is incorrect; exhaustion of an ineffective assistance of counsel claim does not exhaust

an underlying or related claim of constitutional error. Rose v. Palmateer, 395 F.3d 1108, 1112

(9th Cir. 2005). Because Petitioner also argues that trial and appellate counsel were ineffective

by failing to object to Hursh’s testimony and failing to raise Petitioner’s Batson challenge on

appeal, I consider Petitioner’s arguments in the context of the claims asserted in Grounds

Six(D)(2), (G)(2), and (H).

“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). A petitioner “must show that the state court’s

ruling on the claim being presented in federal court was so lacking in justification that there was

an error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). Thus, “even if the

federal habeas court concludes that the state court decision applied clearly established federal

law incorrectly, relief is appropriate only if that application is also objectively unreasonable.”

Penry v. Johnson, 532 U.S. 782, 793 (2001).

Under the well-established Supreme Court precedent of Strickland v. Washington, 466

U.S. 668 (1984), a petitioner alleging the ineffective assistance of counsel must show that

“counsel’s performance was deficient” and the “deficient performance prejudiced the defense.”

466 U.S. at 687. To establish deficiency and prejudice, a petitioner “must show that counsel’s

representation fell below an objective standard of reasonableness” and “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Id. at 688, 694. Unless a petitioner “makes both showings, it cannot be said that

the conviction...resulted from a breakdown in the adversary process that renders the result

unreliable.” Id. at 687.

Judicial review of an attorney’s performance under Strickland is “highly deferential” and

must afford counsel “wide latitude…in making tactical decisions.” Id. at 689. “A fair assessment

of attorney performance requires that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the

conduct from counsel’s perspective at the time.” Id. at 689. In short, a petitioner must overcome

the presumption that, under the circumstances, the challenged action “might be considered sound

trial strategy.” Id. (citation omitted). Finally, a “doubly deferential” standard applies when “a

federal court reviews a state court’s Strickland determination.” Cheney v. Washington, 614 F.3d

987, 995 (9th Cir. 2010). On federal habeas review, the state court “must be granted a deference

and latitude that are not in operation when the case involves review under the Strickland standard

itself.” Richter, 562 U.S. at 101.

1. Ineffective Assistance of Trial Counsel

a. Testimony of Esperanza Hursh

In Ground Six(D)(2), Petitioner argues that trial counsel unreasonably failed to object to

the testimony of Esperanza Hursh, Correa’s daughter.

During the guilt phase of trial, Hursh testified that Correa had been a registered nurse for

over twenty-five years and most recently worked at St. Vincent’s Hospital in Outpatient Eye

Services. Tr. 1174. When asked to describe her mother, Hursh confirmed that Correa was “a

good Samaritan,” “helpful to people,” “an extrovert” and “inquisitive.” Id. Hursh further testified

that, after family friend at Safeway called her about Correa’s shooting, Hursh rushed to the crime

scene and saw a body lying under a yellow tarp near Petitioner’s car. Tr. 1177-78. Hursh began

yelling at the paramedics, providing Correa’s medical history and telling them to help her. Id.

Petitioner argues that Hursh’s testimony regarding Correa’s character was irrelevant

during the guilt phase of trial, and that counsel was deficient for failing to object on those

grounds. Petitioner maintains, without elaboration or factual support, that the prejudice arising

from the failure to object “is undeniable.” Pet’r Brief at 45-46.

The PCR court found that Petitioner failed to prove that counsel acted unreasonably or

that an objection to Hursh’s testimony “would have had legal merit and would have been

granted.” Resp’t Ex. 160 at 4. I agree that reasonable trial counsel could have chosen not to

object to Hursh’s testimony, and the PCR court did not unreasonably apply Strickland when

rejecting this claim.

As the daughter of a murder victim, Hursh was a sympathetic witness and counsel could

have reasonably concluded that the jury would look unfavorably upon a party who objected to

Hursh’s testimony about her mother. Further, Hursh’s description of Correa’s traits was brief and

not overly prejudicial, particularly when Petitioner’s primary defense was that he did not intend

to kill her. The State also presented overwhelming evidence of Petitioner’s guilt, and he fails to

show a reasonable likelihood that the result of trial would have been different if counsel had

objected to Hursh’s testimony. See generally Tr. 867-1439. Accordingly, Petitioner fails to

sustain his burden on this claim.

b. Stipulated Testimony of Diep Brady

In Ground Six(D)(3), Petitioner claims that trial counsel unreasonably stipulated to the

admission of Diep Brady’s prepared testimony during the guilt phase of trial. After consulting

with Petitioner, his counsel, and the court, the prosecutor set forth the stipulated facts to which

Diep Brady would have testified, as follows in pertinent part:

In early April, 1994, [Mr. and Mrs. Brady and Petitioner] moved to Vancouver,

Washington…[and] leased an Apartment 278X at the Brentwood Apartments….

[Diep Brady] would further testify that on August 3rd, 1994, … at 8:30 p.m., she

was watching television and Mr. Brady, the [Petitioner], was in his bedroom.

* * * * *

That at approximately 9:30, [Petitioner] left the Brentwood Apartments. That he

was driving the Daihatsu automobile and that he was wearing a tan jacket and

jeans.

At approximately 11:00 o’clock p.m., Mrs. Brady woke up after falling asleep on

the couch and went to bed in the master bedroom. Shortly thereafter, the

[Petitioner] returned home.

On August 4, 1994, she and her husband were asked to leave the apartment by the

Vancouver Police Department SWAT team, and they did and were escorted to the

office where they were told that the [Petitioner] was going to be arrested for

armed robbery and the murder of a woman.

Later on that morning, officers showed Mrs. Brady two jackets, and Mr. Brady

was present. Mrs. Brady identified the tan jacket with the red and black plaid

lining as the [Petitioner]’s jacket, and she would so state that the [Petitioner] was

wearing that tan jacket the evening before when he left the apartment at

approximately 9:30 p.m. She could not identify the windbreaker….

Also on the morning of August 4, 1994, officers showed her and her husband the

Industry safe. She had never seen it before. It did not belong in the cabinet in the

master bathroom.

…On Sunday, August 7, 1994, … Mrs. Brady…went out onto the patio area [of

the apartment] to water some flowers.

While there, she noticed a blue sleeping bag standing upright along the left side of

a refrigerator, which is outside on the patio.... When Mr. Brady returned from the

market, she showed him what she had found. Mr. Brady unzipped the sleeping

bag and found a black case inside.

* * * * *

Mrs. Brady recognized the blue sleeping bag, as she had seen it under the

[Petitioner]’s bed on several occasions. Mrs. Brady had never seen the black gun

case before. She had never seen the SKS military style rifle before. She had never

seen the .380 semiautomatic pistol before.

Tr. 1321-25.

Petitioner argues that Diep Brady’s prepared statements would have been inadmissible

without his stipulation and counsel should have insisted that the State call her as a witness

against him. Petitioner argues that he suffered prejudice from the stipulation, because Diep

Brady’s stipulated testimony corroborated that: 1) Petitioner was wearing a tan jacket when he

left the apartment on August 3, 1994; 2) the tan jacket found in the dumpster near the apartment

was Petitioner’s; and 2) Petitioner owned a blue sleeping bag similar to the one found with an

SKS rifle inside.

Petitioner fails to show that the PCR court unreasonably rejected this claim. Petitioner

personally agreed to Diep Brady’s stipulated testimony after consulting with counsel, and the

trial court repeatedly informed Petitioner of his right to confrontation and found that his waiver

was knowing and voluntary. Tr. at 1274-76. In fact, Petitioner concedes that the trial court

cleared the courtroom, gave defense counsel the opportunity to advise Petitioner about his

confrontation rights, and obtained specific written stipulations before accepting Petitioner’s

“knowing, voluntary, and intelligent waiver of his right to question and confront Diep Brady.”

Pet’r Brief at 40.

To the extent Petitioner contends that counsel was deficient by advising him to agree to

the stipulation, reasonable counsel could have determined that Diep Brady’s stipulated testimony

would be less prejudicial than her live testimony and avoid a situation where Petitioner’s mother

would be forced to testify against him. Moreover, Petitioner stated on the record that he was

satisfied with his counsel’s advice regarding the stipulation. See Tr. 1276, 1285-87.

Petitioner also fails to show prejudice. Petitioner presented no evidence that Diep Brady’s

prepared statements were inaccurate, that she would have refused to testify, or that she would

have testified differently on the stand. Thus, Petitioner fails to demonstrate a reasonable

probability of a different trial outcome had counsel advised against the stipulation, and he is not

entitled to habeas relief on this ground.

c. Waiver of Life with the Possibility of Parole

In Ground Six(E), Petitioner claims that trial counsel “waived” his right to have the jury

consider a sentence of life with the possibility of parole and failed to “effectively advise”

Petitioner regarding the waiver of that right. Sec. Am. Pet. at 8. In his supporting brief, Petitioner

contends that habeas relief is required, because “nothing on the record” indicates that Petitioner

“was made aware of the consequences of abandoning this right, and that he was making the

waiver freely and of his own volition.” Pet’r Brief at 41. Petitioner maintains that that “the trial

court engaged in no colloquy with Brady and made no statement to Brady concerning the

consequences of abandoning the parole option.” Id. Petitioner is patently incorrect.

The transcript of record makes clear that the trial court ensured Petitioner’s waiver was

voluntary, knowing, and intelligent by engaging in a lengthy colloquy with Petitioner, explaining

the consequences of Petitioner’s waiver, and repeatedly asking Petitioner whether he voluntarily

agreed to waive the option of life with the possibility of parole. Tr. 3459-66. Petitioner stated

that he understood the decision was his to make and repeatedly affirmed that he chose to waive

the option of life with the possibility of parole. Id. Even then, the trial court allowed Petitioner to

consider his decision until the following day, and Petitioner did not withdraw his waiver. Tr.

3465-66, 3468-69. At that time, the court found that Petitioner’s waiver was knowing and “freely

and voluntarily made” and permitted Petitioner to “withdraw that question from the jury.” Tr.

3469.6 In no way did trial counsel “usurp” or “unilaterally” waive Petitioner’s rights. Pet’r Brief

at 38, 42.

6 Petitioner also argues that the PCR court erred by placing the burden on Petitioner to

“submit evidence proving that counsel compelled Brady to abandon a life-with-the-possibility-

of-parole sentencing option.” Pet’r Brief at 39. However, it is well established that a petitioner

bears the burden to show entitlement to post-conviction relief. See Lopez-Minjarez v. Kelly, 336

Or. App. 544, 547-48 (2024) (“A petitioner claiming inadequate assistance of counsel … has the

burden ‘to show, by a preponderance of the evidence, facts demonstrating that trial counsel failed

to exercise reasonable professional skill and judgment and that petitioner suffered prejudice as a

result.’”) (quoting Trujillo v. Maass, 312 Or. 431, 435 (1991); see also Mayes v. Premo, 766

F.3d 949, 957 (9th Cir. 2014) (a federal habeas petitioner bears the burden of proving claims).

Petitioner also fails to show that counsel was deficient in advising him to waive the

option of life with the possibility of parole. During the guilt phase of Petitioner’s trial, the State

presented overwhelming evidence that Petitioner shot an innocent bystander to a robbery and

attempted to murder a witness to the shooting. During the penalty phase, the State presented

evidence that Petitioner was convicted of six armed bank robberies in 1989, and after his release

from prison in 1992, that Petitioner murdered a California police officer in front of the officer’s

nephew and robbed five other Safeway stores. E.g., Tr. 1523-24, 1644-58.

Given the facts of Correa’s murder and Petitioner’s criminal history, trial counsel

reasonably advised Petitioner to forgo the possibility of parole in an attempt to sway the jury

against the imposition of death and provide assurance to the jury that Petitioner would remain

incarcerated for life. The record reflects that Petitioner agreed with this strategy, even if

“reluctantly.” Resp’t Ex. 149 at 67.

Petitioner also fails to show prejudice. Petitioner’s criminal history demonstrated his

proclivity to commit violent crimes despite his prior convictions and incarceration, and the facts

of Correa’s murder and Dickson’s attempted murder reflected a disregard for the sanctity of life.

Based on this record, Petitioner fails to show a reasonable likelihood that a jury would have

found life with the possibility of parole to be appropriate punishment for Correa’s murder and

Dickson’s attempted murder. Habeas relief is denied on this ground.

2. Ineffective Assistance of Appellate Counsel

In Grounds Six(G)(2) and (H), Petitioner claims that appellate counsel provided

ineffective assistance by failing to challenge the trial court’s denial of Petitioner’s Batson

objection and failing to ensure that the appellate record contained the voir dire transcript to

support this claim.

During voir dire, the State exercised a peremptory challenge against a potential juror,

who apparently was Buddhist.7 Petitioner’s counsel objected to the State’s peremptory challenge

under Batson v. Kentucky, 476 U.S. 79 (1986), arguing that the challenge was based on the

juror’s religion as a Buddhist and discriminatory. Petitioner was not Buddhist and the trial court

apparently questioned whether he made an adequate showing of a discriminatory challenge. In

response to Petitioner’s objection, the prosecutor argued that the juror’s answers during voir dire

made the prosecutor question whether the juror would follow the law and the court’s

instructions. The trial court overruled Petitioner’s objection and the juror was excused. See Pet’r

Ex. to Am. Pet. (ECF No. 20 at 3) (counsel’s memo to file).

On direct appeal, Petitioner’s appellate counsel designated all “testimony and exhibits

offered and/or received in evidence at the trial” on the dates corresponding with voir dire and the

guilt phase. Resp’t Ex. 135. For unknown reasons, the voir dire transcripts were not prepared and

are not part of the record.8 Ultimately, appellate counsel raised only one assignment of error

challenging Petitioner’s sentence for Attempted Aggravated Murder and did not assign error to

the trial court’s denial of Petitioner’s Batson challenge. Resp’t Ex 103.

During Petitioner’s PCR proceeding, PCR counsel attempted to obtain the voir dire

transcript from Washington County. Resp’t Ex. 135. Due to the length of time since Petitioner’s

7 Because the record does not contain the voir dire transcript, Petitioner relies on a memo

to file purportedly created by trial counsel that summarizes Petitioner’s Batson objection, the

State’s response, and the trial court’s ruling. See Pet’r Ex. to Amended Petition (ECF No. 20 at

3). Respondent does not contest Petitioner’s reliance on this memo or argue that the memo is not

properly before the Court.

8 Petitioner makes the unsupported assertion that the State “suppressed” and caused the

“destruction” of the voir dire transcript. Pet’r Brief at 23, 25, 28, 29, 31, 32. Any implication that

the State intentionally withheld or destroyed the transcript is unwarranted and does not further

the argument that Petitioner should be excused for failing to establish the factual basis of his

claim or that he may rely on other evidence, such as counsel’s memo to the file.

trial, Washington County no longer had the court reporter’s notes and could not provide the

transcript. Resp’t Ex. 135 at 6.

Petitioner argues that reasonable appellate counsel would have raised a Batson argument

on appeal and ensured that the voir dire proceedings were transcribed and available for review.

Petitioner maintains that appellate counsel’s failure to do so caused prejudice, because

Petitioner’s Batson challenge would have been successful on appeal or PCR review, and counsel

could not effectively argue that the juror’s exclusion was erroneous without a voir dire transcript.

The PCR court rejected these claims, finding that Petitioner failed to prove that appellate

counsel acted unreasonably or that “the denial of petitioner’s Batson challenge, had the issue

been raised as error on direct appeal, would more likely than not have changed the outcome of

petitioner’s case.” Resp’t Ex. 160 at 6. These findings were reasonable.

At the time of Petitioner’s appeal, the Supreme Court had not extended Batson to

religious affiliation or belief. See, e.g., Davis v. Minnesota, 511 U.S. 1115 (1994) (denying

certiorari to review a state supreme court decision declining to extend Batson to religion). Given

the tenuous nature of Petitioner’s Batson challenge, appellate counsel was not deficient by failing

to raise an argument that was not supported by binding precedent and was unlikely to succeed on

appeal. See Shah v. United States, 878 F.2d 1156, 1162 (9th Cir. 1989) (holding that counsel is

not ineffective for failing to raise claims that lack merit); Baumann v. United States, 692 F.2d

565, 572 (9th Cir. 1982) (“The failure to raise a meritless legal argument does not constitute

ineffective assistance of counsel.”). For the same reason, Petitioner cannot show that the

outcome of his appeal or PCR proceeding would have been different if appellate counsel had

obtained voir dire transcripts and assigned error to denial of his Batson challenge. Thus, the PCR

court reasonably found that appellate counsel did not render ineffective assistance.

In sum, Petitioner fails to show that the PCR court unreasonably applied Strickland when

denying his claims, and he is not entitled to federal habeas relief.

CONCLUSION

The Second Amended Petition for Writ of Habeas Corpus (ECF No. 146) is DENIED and

Respondent’s Motion to Strike (ECF No. 163) is GRANTED. Petitioner did not obtain leave of

Court to file an untimely, pro se Sur-Reply and the Sur-Reply and pro se supplemental filings

(ECF Nos. 162, 165-71) are STRICKEN.

A Certificate of Appealability is DENIED on the basis that Petitioner has not made a

substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).

IT IS SO ORDERED.

DATED this 3rd day of April, 2025.

s/Michael J. McShane

MICHAEL J. MCSHANE

United States District Judge