Guardado v. Fhuere

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JUAN JOSE GUARDADO,

Case No. 6:24-cv-00052-SI

Petitioner,

OPINION AND ORDER

v.

COREY FHUERE,

Respondent.

Juan Jose Guardado

21521388

2605 State Street

Salem, OR 97310-0505

Petitioner, Pro Se

Dan Rayfield, Attorney General

Daniel T. Toulson, Assistant Attorney General

Department of Justice

1162 Court Street NE

Salem, Oregon 97310

Attorneys for Respondent

SIMON, District Judge.

Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the

legality of a Yamhill County conviction dated May 17, 2017. For the reasons that follow, the

Petition for Writ of Habeas Corpus (#1) is denied.

BACKGROUND

On May 31, 2016, while Petitioner was incarcerated at the Yamhill County Jail, he

engaged in over the clothing touching of his bunkmate’s genitals. The bunkmate was asleep at the

time, but woke up to the touching. A third AIC witnessed the incident, and the Yamhill County

prosecutor indicted Petitioner on a single count of Sexual Abuse in the First Degree under the

theory that he sexually assaulted his bunkmate who was incapable of consenting to the touching

by virtue of being asleep. Respondent’s Exhibit 102.

A unanimous jury convicted Petitioner, and the prosecution argued that because this

constituted Petitioner’s third sex-related felony conviction, he should be sentenced to life without

parole pursuant to ORS 138.719.1 The trial judge agreed that the newest conviction constituted

Petitioner’s third felony sex crime. However, she found substantial and compelling reasons not to

impose the presumptive life sentence prescribed by statute and, instead, sentenced Petitioner to

180 months in prison. Respondent’s Exhibit 101, pp. 6-7.

Petitioner took a direct appeal where he argued two issues: (1) the trial court erred when it

failed to instruct the jury that it could not find him guilty unless the State proved that he actually

knew that the victim was incapable of consent; and (2) the trial court plainly erred when it relied

upon a California crime from Petitioner’s criminal history as a qualifying predicate offense for

1 ORS 138.719 establishes a presumptive life sentence without the possibility of parole if the

defendant has, twice prior to his current offense, been convicted of a felony sex crime. Any such

prior convictions may be from any state or federal court. ORS 137.719(3)(b)(B).

purposes of ORS 138.719. The State conceded that the California crime was not an eligible offense

that could justify the enhanced sentence imposed under ORS 138.719 and that, even though the

claim was unpreserved, it constituted plain error such that the Oregon Court of Appeals could

address the issue on the merits. See Ailes v. Portland Meadows, Inc., 312 Or. 376, 3825 n. 6, 823

P.2d 956 (1991) (providing standards of plain error review of unpreserved claims in the Oregon

Court of Appeals). In a written opinion, the Oregon Court of Appeals rejected the first claim

without discussion, found the second claim amounted to plain error, and remanded the case for

resentencing. Consistent with that decision, upon remand, the trial court sentenced Petitioner to 75

months in prison. State v. Guardado, 292 Or. App. 773, 421 P.3d 426 (2018). Petitioner sought

further appellate review in the Oregon Supreme Court, but it denied review. 363 Or. 817, 431 P.3d

423 (2018).

Petitioner next filed for post-conviction relief (“PCR”) in Marion County where he raised

five claims of ineffective assistance of trial counsel, all of which the PCR court denied.

Respondent’s Exhibit 134. In two of those claims, Petitioner alleged that counsel was ineffective

because, where the State had not proven that Petitioner actually knew the victim was incapacitated,

it was incumbent upon counsel to: (1) move for a judgment of acquittal; and (2) seek a jury

instruction regarding the actual knowledge component of the crime. When the PCR court denied

relief on these claims, it found that Oregon law required only that the prosecution prove the

victim’s incapacity, not that Petitioner knew of the incapacity. Id. at 2-3.

During his PCR appeal, Petitioner pursued only his claims that counsel should have moved

for a judgment of acquittal and a specific jury instruction based upon Petitioner’s lack of

knowledge regarding the victim’s incapacity. The Oregon Court of Appeals issued a written but

non-precedential decision in which it quoted its own longstanding precedent concerning on the

mens rea issue: “[i]t is clear * * * that the legislature did not intend to require the state to prove

that defendant acted with a culpable mental state with regard to whether the victim lacked the

mental capacity to consent.” Guardado v. Kelly, 326 Or. App 90, 91 (2023) (quoting State v.

Phelps, 141 Or. App. 555, 558, 220 P.2d 1098, rev. denied, 324 Or. 306 (1996)). Petitioner

petitioned the Oregon Supreme Court for review, but was unsuccessful. 371 Or. 535, 538 P.3d

1220 (2023).

On January 8, 2024, Petitioner filed his Petition for Writ of Habeas Corpus in which he

raises seven grounds for relief that can be summarized as follows:

1. The trial court erred when it failed to instruct the jury that it

needed to find that Petitioner knew the victim was asleep and, thus,

incapable of consenting to the sexual touching;

2. Trial counsel was ineffective when he failed to request a jury

instruction that Petitioner must have known that the victim was

incapable of consent;

3. Trial counsel was ineffective for failing to move for a

judgment of acquittal due to the State’s failure to prove that

Petitioner knew the victim was incapable of consent;

4. Trial counsel was ineffective when he failed to provide

Petitioner with all discovery, thereby violating his right to aid and

assist in his own defense;

5. Trial counsel was ineffective during closing argument when

he failed to identify inconsistencies in the State’s witnesses’

testimony and evidence;

6. Trial counsel was ineffective when he failed to object to an

unconstitutional trial condition that prevented Petitioner from

viewing video evidence, depriving him of his ability to aid and assist

in his own defense, and violating his constitutional right of

confrontation;

7. Trial counsel failed to offer evidence to impeach testimony

adduced from the victim and third-party witness, and failed to argue

that the investigation into the incident giving rise to the Indictment

was insufficient.

Petition (#1), pp. 5-7.

Respondent asks the Court to deny relief on the Petition because: (1) Petitioner failed to

fairly present Grounds One, Four, Five, Six, and Seven to Oregon’s state courts, leaving them

procedurally defaulted and ineligible for merits review; and (2) the Oregon Court of Appeals’

decision denying relief on Grounds Two and Three was not unreasonable.

DISCUSSION

I. Exhaustion and Procedural Default

A. Standards

A habeas petitioner 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 those claims. Rose v. Lundy, 455 U.S. 509, 519 (1982). "As a general rule, a petitioner

satisfies the exhaustion requirement by fairly presenting the federal claim to the appropriate state

courts . . . in the manner required by the state courts, thereby 'affording the state courts a

meaningful opportunity to consider allegations of legal error.'" Casey v. Moore, 386 F.3d 896, 915-

916 (9th Cir. 2004) (quoting Vasquez v. Hillery, 474 U.S. 254, 257, (1986)).

If a habeas litigant failed to present his claims to the state courts in a procedural context in

which the merits of the claims were actually considered, the claims have not been fairly presented

to the state courts and are therefore not eligible for federal habeas corpus review. Edwards v.

Carpenter, 529 U.S. 446, 453 (2000); Castille v. Peoples, 489 U.S. 346, 351 (1989). In this respect,

a petitioner is deemed to have "procedurally defaulted" his claim if he failed to comply with a state

procedural rule, or failed to raise the claim at the state level at all. Carpenter, 529 U.S. 446, 451

(2000); Coleman v. Thompson, 501 U.S. 722, 750 (1991). If a petitioner has procedurally defaulted

a claim in state court, a federal court will not review the claim unless the petitioner shows "cause

and prejudice" for the failure to present the constitutional issue to the state court, or makes a

colorable showing of actual innocence. Gray v. Netherland, 518 U.S. 152, 162 (1996); Sawyer v.

Whitley, 505 U.S. 333, 337 (1992); Murray v. Carrier, 477 U.S. 478, 485 (1986).

B. Analysis

Petitioner concedes that he failed to fairly present Grounds One, Four, Five, and Six to

Oregon’s state courts, leaving them procedurally defaulted. He asserts, however, that he did fairly

present the claims in Ground Seven to the Oregon Supreme Court because he included them in his

Supplemental Pro Se Petition for Review. See Respondent’s Exhibit 140. Oregon Supreme Court

review is limited, however, only to questions that were properly before the Oregon Court of

Appeals. ORAP 9.20(2); State v. Link, 367 Or. 625, 638, 482 P.3d 28 (2021) (en banc) (only claims

which were properly before the Oregon Court of Appeals are eligible for review by the Oregon

Supreme Court); State v. Castrejon, 317 Or. 202, 856 P.2d 616, 622 (1993) (same). Petitioner

acknowledges that he did not first raise Ground Seven in his PCR proceeding or in the Oregon

Court of Appeals, but points out that the Oregon Supreme Court “retains the inherent authority to

allow or deny any petition for review.” ORAP 9.07. He reasons that even though he did not raise

Ground Seven in the proper procedural context, the latitude enjoyed by the Oregon Supreme Court

as Oregon’s highest state court suggests that he provided it with a fair opportunity to pass upon

the merits of his claims.

A petition for review by the Oregon Supreme Court is limited to reviewing errors allegedly

made by the Oregon Court of Appeals. See ORAP 9.05 (titled “Petition for supreme court review

of court of appeals decision”). Because Petitioner failed to present his Ground Seven claims to the

Oregon Court of Appeals, there was no decision to review, and the Oregon Supreme Court was

not in a position to conclude that the Oregon Court of Appeals erred when it did not address an

unraised, nonexistent claim.2 He therefore failed to fairly present Ground Seven to the Oregon

Supreme Court in a context in which the merits of the claim could reasonably be considered.

Because the time for doing so passed long ago, Ground Seven is procedurally defaulted.

Petitioner first asks the Court to excuse the procedural default of his claims because he

included them in his Church motion to the PCR court.3 He argues that he was unaware until only

recently that their inclusion in such a motion did not actually present the claims to the PCR court

for its consideration. He maintains that “due to no fault of his own Petitioner was not aware of the

process that he was required to follow in order to fully exhaust the claims.” Reply (#34), p. 4. In

this respect, he argues that his lack of legal knowledge constitutes cause to excuse his default.

A habeas petitioner seeking to overcome a procedural default through a showing of cause

and prejudice must show that some external factor not attributable to him prevented him from

complying with a state procedural rule, and that he suffered actual prejudice as a result. Murray v.

2 Even if the Oregon Supreme Court could conduct such a “review,” seeking merits review of an

unpreserved claim and relying upon the highly remote possibility that discretionary appellate

review might be granted in this situation might theoretically constitute “presentation,” but it does

not constitute “fair presentation.” See Baldwin v. Reese, 541 U.S. 27, 29 (2004) (a petitioner “must

‘fairly present’ his claim in each appropriate state court”) (emphasis added). Only if the Oregon

Supreme Court had in fact allowed review of the claim in this situation would fair presentation

have been satisfied.

3 In Church v. Gladden, 244 Or. 308, 311-21, 417 P.2d 993 (1966), the Oregon Supreme Court

held that where a litigant wishes to raise claims that his attorney refuses to pursue, he must inform

the court of counsel’s failure to follow a legitimate request. The litigant may ask to have counsel

replaced, or he may request that the court require the attorney to comply with the litigant’s request

to add specific claims. The question a Church motion presents to a PCR court is “whether the

petitioner has established that, in choosing which grounds for relief to raise, counsel has failed to

exercise reasonable professional skill and judgment.” Bogle v. State, 363 Or. 455, 471 (2018). In

Petitioner’s case, the PCR court did not order PCR counsel to add any of the claims contained

within the Petition for Writ of Habeas Corpus to the operative PCR pleading. See Respondent’s

Exhibit 133, pp. 19-20.

Carrier, 477 U.S. 478, 488 (1986); United States v. Frady, 456 U.S. 152, 170 (1982). Petitioner’s

lack of legal knowledge does not constitute cause to excuse a procedural default. See Tacho v.

Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (an AIC who was forced to rely on AIC legal

assistants could not establish cause to excuse a default) Hughes v. Idaho State Bd. Of Corr., 800

F.2d 905, 909 (9th Cir. 1986) (even an illiterate AIC who has no legal assistance cannot

demonstrate cause to excuse a default). Petitioner is therefore unable to establish cause and

prejudice to excuse his default.

Petitioner also asks the Court to excuse his procedural default on the basis that he can make

a gateway showing of actual innocence. He emphasizes that he is “not making a free-standing

claim of actual innocence because he is not currently in possession of evidence of his innocence.”

Reply (#34), p. 12. He therefore asks the Court to permit him to develop evidence of his innocence

at an evidentiary hearing in order to overcome his procedural default.

In Schlup v. Delo, 513 U.S. 298 (1995), the Supreme Court addressed the process by which

state prisoners may prove "actual innocence" so as to excuse a procedural default.4 The Court

explained that in order to be credible, a claim of actual innocence "requires petitioner to support

his allegations of constitutional error with new reliable evidence-–whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical physical evidence–-that was not

4 Petitioner, who cites to Murray v. Carrier, 477 U.S. 478 (1986), and Maples v. Thomas, 565 U.S.

266 (2012), in reference to his claim of actual innocence, takes issue with Respondent’s citation

to Schlup. He claims that Schlup is inapposite to his case. However, in Schlup, the Supreme Court

thoroughly set out the process for district courts to evaluate gateway claims of actual innocence

intended to help a habeas corpus petitioner overcome a procedural default. Indeed, as the Supreme

Court later said, Schlup “establish[ed] the gateway standard” by which convicted persons could

excuse a procedural default by way of a showing of actual innocence. House v. Bell, 547 U.S. 517,

555 (2006). Carrier and Maples did not set out different procedures by which a habeas corpus

petitioner can establish a gateway claim of actual innocence.

presented at trial." Id. at 324; Downs v. Hoyt, 232 F.3d 1031, 1040 (9th Cir. 2000), cert. denied,

121 S.Ct. 1665 (2001). Ultimately, a petitioner must prove that it is more likely than not that no

reasonable juror would have found him guilty beyond a reasonable doubt. Schlup, 513 U.S. at 327;

Bousley v. United States, 523 U.S. 614, 623 (1998); Downs, 232 F.3d at 1040. In making this

determination, this Court "must assess the probative force of the newly presented evidence in

connection with the evidence of guilt adduced at trial." Schlup, 513 U.S. at 332.

Petitioner asserts that his trial attorney failed to provide him with all of the evidence

produced during discovery, and that counsel also failed to discover “all evidence that may have

been available.” Reply (#34), p. 12. He claims that once he brings all available evidence to light

in an evidentiary hearing, he will explain its significance, it will become clear that the State’s

version of the case is not correct, and he will establish his innocence. He does not, however, specify

the nature of the new evidence he intends to develop, nor does he identify how such evidence

would tend to show his innocence. Petitioner's allegation that there “may have been [other

evidence] available” that he might be able to develop during the course of an evidentiary hearing,

Reply (#34), p. 12, and his failure to describe the nature of that evidence and its bearing on his

claim of innocence, have “failed to show what . . . an evidentiary hearing might reveal of material

import on his assertion of actual innocence." Gandarela v. Johnson, 286 F.3d 1080, 1087 (9th Cir.

2002). Petitioner’s request for an evidentiary hearing is therefore denied. Because Petitioner is

unable to identify new evidence of innocence, he is unable to establish a gateway claim of actual

innocence so as to excuse his procedural default. He is therefore not entitled to habeas corpus relief

on Grounds One, Three, Four, Five, Six, and Seven.

///

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II. The Merits

A. 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's findings of fact are

presumed correct, and Petitioner bears the burden of rebutting the presumption of correctness by

clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

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). Under the "unreasonable application" clause, 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. Twenty-eight 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). “If this standard is difficult to meet, that is because it was meant

to be.” Id.

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B. Grounds Two and Three: Ineffective Assistance of Counsel

As Grounds Two and Three, Petitioner alleges that his trial attorney was ineffective in

violation of the Sixth and Fourteenth Amendments when he failed to: (1) move for a judgment of

acquittal when the State failed to prove that Petitioner knew the victim was incapable of consent

by virtue of incapacity; and (2) ask the trial judge to instruct the jury that it could only find him

guilty of Sexual Abuse in the First Degree if it found that he actually knew that the victim was

incapable of consenting to the sexual touching. The Court uses the general two-part test established

by the Supreme Court to determine whether Petitioner received ineffective assistance of counsel.

Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009). First, Petitioner must show that his counsel's

performance fell below an objective standard of reasonableness. Strickland v. Washington, 466

U.S. 668, 686-87 (1984). Due to the difficulties in evaluating counsel's performance, courts must

indulge a strong presumption that the conduct falls within the "wide range of reasonable

professional assistance." Id at 689.

Second, Petitioner must show that his counsel's performance prejudiced the defense. The

appropriate test for prejudice is whether Petitioner can show "that there is a reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would have been

different." Id at 694. A reasonable probability is one which is sufficient to undermine confidence

in the outcome of the trial. Id at 696. “The likelihood of a different result must be substantial, not

just conceivable.” Richter, 562 U.S. 86, 112 (2011) (citing Strickland, 466 U.S. at 693). When

Strickland's general standard is combined with the standard of review governing 28 U.S.C. § 2254

habeas corpus cases, the result is a "doubly deferential judicial review." Mirzayance, 556 U.S. at

122.

Petitioner’s ineffective assistance of counsel claims are both dependent upon his assertion

that Oregon law required the State to prove that he knew the victim was incapable of consent. As

recounted in the Background of this Opinion, the Oregon Court of Appeals addressed this issue

directly and determined that state law imposes no such requirement. This state court interpretation

of state law is binding on a federal court adjudicating a habeas corpus case. Estelle v. McGuire,

502 U.S. 62, 67-68 (1991) ("[W]e reemphasize that it is not the province of a federal habeas court

to reexamine state-court determinations on state-law questions."); Floyd v. Filson, 949 F.3d 1128,

1146 (9th Cir. 2020) (even a state court’s misreading of state law is not a ground for habeas corpus

relief).

Petitioner nevertheless maintains that it was incumbent upon counsel to raise the mens rea

issue because the Oregon Supreme Court had never resolved it, thus there was an opportunity to

preserve the claim for appeal with the hope that the Oregon Supreme Court might disagree with

the Oregon Court of Appeals. Petitioner is effectively asking this Court to fault his trial attorney

for not attempting to usher in a change in state law. This is not a basis for an ineffective assistance

of counsel claim. Indeed, even if the law had changed after Petitioner’s trial (which it did not),

Strickland would not be implicated because "Strickland does not mandate prescience, only

objectively reasonable advice under prevailing professional norms." Sophanthavong v. Palmateer,

378 F.3d 859, 870 (9th Cir. 2004) (citing Strickland, 466 U.S. at 690); see also Bejarano v.

Reubart, 136 F.4th 873, 904 (9th Cir. 2025) (failure to predict developments in state law is not

deficient performance); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994) (lawyers not required to

anticipate decisions, and conduct must be evaluated at the time of that conduct).

Because Oregon law did not require the State to prove that Petitioner knew of the victim’s

incapacity, counsel’s performance did not fall below an objective standard of reasonableness when

he did not move for a judgment of acquittal on that basis or seek a jury instruction to that effect.

The Oregon Court of Appeals’ decision is therefore neither contrary to, nor an unreasonable

application of, clearly established federal law.

CONCLUSION

For the reasons identified above, Petitioner’s request for an evidentiary hearing is denied,

and the Petition for Writ of Habeas Corpus (#1) is denied. The Court declines to issue a Certificate

of Appealability on the basis that Petitioner has not made a substantial showing of the denial of a

constitutional right pursuant to 28 U.S.C. § 2253(c)(2).

IT IS SO ORDERED.

August 15, 2025 Lut Fee Lon

DATE Michael H. Simon

United States District Judge

13 — OPINION AND ORDER