MALCOLM F. MARSH, District Judge.
Petitioner, an inmate at the Eastern Oregon Correctional Institution, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the reasons set forth below, petitioner's habeas petition is denied.
On December 4, 2006, petitioner was convicted by a jury of one count of Sexual Abuse in the Second Degree (Marion County Case No. 06C41696). Resp. Exh. 136. His conviction arose out of a sexual relationship with his girlfriend "V.M.," who was seventeen years old at the time of the offense.
Petitioner filed a direct appeal assigning error to the trial court's refusal to give a proposed jury instruction and the imposition of upward departure sentences. Resp. Exhs. 106 & 108. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. State v. Bravo, 225 Or. Ap. 219, 200 P.3d 641, rev, denied, 346 Or. 364 (2009).
Petitioner subsequently sought state post-conviction relief on the basis that he received ineffective assistance of counsel. Resp. Exh. 129 at 8-10. The post-conviction court denied relief, the Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. Bravo v. Coursey, 252 Or.App. 318, 290 P.3d 910 (2012), rev. denied, 353 Or. 203 (2013). In the instant proceeding, petitioner alleges that the trial court erred in instructing the jury and imposing departure sentences, and that defense counsel rendered ineffective assistance of counsel.
In Grounds for Relief One, Two, and Three, petitioner alleges that the trial court erred in refusing to give petitioner's requested instruction on the defense of renunciation, and by imposing upward departure sentences on each of his convictions.
It is well settled that federal habeas corpus relief is available to a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Swarthout v. Cooke, 131 S.Ct. 859, 861 (2011); Wilson v. Corcoran, 131 S.C.t. 13, 15 (2010) (per curiam). Because Grounds for Relief One, Two and Three are premised upon state law violations, habeas relief is not warranted.
Generally, a state prisoner must exhaust all available State law remedies either on direct appeal or through collateral proceedings before a federal court may consider granting habeas corpus relief. 28 U.S.C. § 2254(b)(1). A federal claim is procedurally defaulted if the petitioner does not fairly present his federal claims to the appropriate state courts at all appellate stages afforded under state law, and state procedural rules would now bar consideration of the claims. O'Sullivan v. Boerckel, 526 U.S. 838, 845, 848 (1999); Cooper v. Neven, 641 F.3d 322, 327-28 (9" Cir. 2011). Habeas review of procedurally defaulted claims is precluded absent a showing of cause and prejudice, or that failure to consider the federal claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
In Ground for Relief Six, petitioner alleges trial counsel was ineffective for failing to object to the judgments of conviction that "impermissibly created indeterminate terms of post-prison supervision." Although petitioner raised ground six in his formal petition for post-conviction relief, he failed to raise this issue on appeal to the Oregon Court of Appeals, and in his petition for review to the Oregon Supreme Court. Compare Resp.'s Exh. 130 with Resp.'s Exhs. 142 & 145. Accordingly, ground six is procedurally defaulted. Because petitioner offers no basis to excuse his procedural default, habeas relief is precluded.
In Grounds for Relief Four and Five, petitioner alleges that trial counsel rendered ineffective assistance by failing to (1) ensure that petitioner's waiver of his right to testify was knowing, voluntary and intelligent; and (2) object to the trial court's use of the victim's age as an aggravating factor to impose an upward departure sentence for Sexual Abuse in the Second Degree.
A petition for writ of habeas corpus filed by a state prisoner shall not be granted 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 evidence presented." 28 U.S.C. § 2254(d)(1) & (2); Harrington v. Richter, 131 S.Ct. 770, 785 (2011). Petitioner bears the burden of proof. Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011).
A claim of ineffective assistance of counsel, requires the petitioner to prove that counsel's performance was deficient, and that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Bell v. Cone, 535 U.S. 685, 695 (2002); Williams v. Taylor, 529 U.S. 362, 390-91 (2000); Strickland v. Washington, 466 U.S. 668, 687-88 (1987).
To prove deficiency of performance, petitioner must show that counsel's representation fell below an objective standard of reasonableness. Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012) (internal quotations omitted). When a state prisoner asks a federal habeas court to set aside a conviction due to ineffective assistance of counsel, this court is required to use a doubly deferential standard of review that gives both the state court and the defense attorney the benefit of the doubt. Burt v. Titlow, 134 S.Ct. 10, 13 (2013); Cullen, 131 S.Ct. at 1403. Counsel is "`strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'" Burt, 134 S.Ct. at 17 (quoting Strickland, 466 U.S. at 690); Cullen, 131 S.Ct. at 1403.
In order to establish prejudice, petitioner must demonstrate that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Harrington, 131 S.Ct. at 792; Williams, 529 U.S. at 391. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Williams, 529 U.S. at 391. In evaluating proof of prejudice, this court considers the totality of the evidence before the jury. Strickland, 466 U.S. at 696. "[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Id.
In Ground for Relief Four, petitioner claims that defense counsel was ineffective because he failed to ensure that petitioner knowingly, voluntarily, and intelligently waived his right to testify. Specifically, petitioner argues that counsel was deficient for failing to inform petitioner that without his testimony he would have no defense to the charge of Sexual Abuse in the Second Degree. Respondent moves the court to deny habeas relief on the basis that the post-conviction court's rejection of his claim is neither contrary to, or an unreasonable application of Strickland. I agree.
At trial, defense counsel raised the affirmative defense of Mistake or Ignorance (see ORS 163.325(2)), arguing to the jury that petitioner reasonably believed that V.M. was over the age of 18 when they had sexual intercourse:
Resp. Exh. 103, TR at 22 & 109-10.
At the state post-conviction hearing, petitioner argued that trial counsel never advised him that his testimony was critical to his affirmative defense of mistake or ignorance. In this regard, petitioner complained that defense counsel presented no evidence to establish his affirmative defense at trial. In support of these contentions, petitioner testified that he wanted to testify, but trial counsel never told him that he could testify and/or affirmatively advised him not to testify. Resp. Exh. 140 at 7-8. According to petitioner, had he taken the stand he would have testified that V.M lied about her age, and that he never had sex with V.M. after learning of her true age. Id. at 8.
Petitioner's trial attorney, however, presented a different version of what transpired prior to trial. In an affidavit presented to the post-conviction court, Attorney Mark G. Obert attested that he advised petitioner of his right to testify, that petitioner did not want to testify, and that petitioner admitted to him that he had sex with V.M. after learning she was only 17 years old:
Additionally, trial counsel explained the strategic decision not to put petitioner on the stand as follows:
Id. at ¶ 4 (emphasis added).
At the conclusion of the post-conviction proceeding, the post-conviction judge held that Attorney Obert was credible, and that counsel presented the only reasonable defense available:
Resp.'s 140 at 16-17 (emphasis added).
Petitioner has failed to demonstrate that the post-conviction court's factual findings that (1) petitioner did not want to testify; (2) that he admitted to having sex with the victim after he knew she was 17; and (3) petitioner would have committed perjury had he taken the stand are unreasonable in light of the evidence presented. 28 U.S.C. § 2254(d) (2).
On the contrary, it is well settled that an attorney's strategic decisions are given deference, and it is not for this court to second guess counsel's strategic decisions. Strickland, 466 U.S. at 689; Mann v. Ryan, 2014 WL 7345864 *6 (9
Petitioner similarly cannot demonstrate that he suffered prejudice under Strickland based upon the assertion that he was (1) not fully advised of the import of his testimony to his affirmative defense; and/or (2) deprived of the opportunity to testify in his own defense. As noted above, the post-conviction court reasonably concluded, based upon the evidence presented, that petitioner told counsel that he had sex with the victim after discovering that she was 17 years old. Hence, had petitioner testified he would have committed perjury. A petitioner "cannot show prejudice based on counsel's refusal to present perjured testimony, even if such testimony might have affected the outcome of the case." Lafler, 132 S.Ct. at 1387 (citing Nix v. Whiteside, 475 U.S. 157, 175 (1986)).
Finally, given the totality of the evidence presented to the jury, petitioner has not demonstrated a reasonable probability that had counsel called petitioner as a witness to testify that he did not have sex with V.M. after learning she was a minor, the result of the proceeding would have been different. On the contrary, given (1) the credibility of V.M.'s testimony; (2) the undisputed evidence that V.M. gave birth to petitioner's child; and (3) petitioner's lengthy criminal history (that undoubtedly would have been brought out during cross examination), it is not reasonably probable that petitioner would have prevailed on his defense of mistake or ignorance. For all of these reasons, the post-conviction court's rejection of this ground is neither contrary to, or an unreasonable application of clearly established federal law. 28 U.S.C. § 2254 (d) (1).
After the jury returned guilty verdicts, the prosecution requested that the trial court present three sentencing enhancement factors to the jury. Resp. Exh. 103 at 124-25. The jury was asked (1) did the defendant engage in persistent involvement in repetitive assaults unrelated to the current crime; (2) have the prior criminal justice sanctions failed to deter the defendant; and (3) is incarceration of the defendant necessary to ensure public safety. Resp. Exh. 104 at 37-38; see also Resp. Exh. 135. The jury answered yes to each of these questions. Resp. Exh. 104 at 40 & Resp. Exh. 137.
At the subsequent sentencing hearing, the trial court concurred and accepted the jury's findings on the three enhancement factors. Resp. Exh. 105 at 13. In so doing, the trial court referenced the victim's age:
Id. at 13 & 15-16.
In the instant proceeding, petitioner contends that trial counsel was ineffective for failing to object to the court's use of the victim's age as a departure factor in violation of Oregon law.
The state post-conviction court rejected this claim, concluding that the trial court's mention of the victim's age does not mean it was used as an aggravating factor:
Resp. Exhs. 140 at 16 & 141 at 2.
Although a close question, I conclude that the post-conviction court's finding that the victim's age was not used as an enhancement factor for imposing a departure sentence is not unreasonable given the fact that (1) the victim's age was not included in the enhancement factors requested by the prosecution or in the special verdict returned by the jury; and (2) the trial court expressly concurred in the jury's findings on the enhancement factors. See Resp. Exhs. 135, 137 & 140 at 15; 28 U.S.C. § 2254(d) (2). Given this finding, an objection to the trial court's purported use of the victim's age as an enhancement factor would have been merltless. Trial counsel is not constitutionally deficient for failing to make a meritless objection. Juan H. v. Allen, 408 F.3d 1262, 1273 (9
Based on the foregoing, petitioner's petition for writ of habeas corpus (#2) is DENTED, and this proceeding is DISMISSED, with prejudice. In the event petitioner appeals, a certificate of appealability is GRANTED on the issue of whether defense counsel was ineffective in failing to object to the trial court's use of the victim's age as an enhancement factor (Ground for Relief Five). See 28 U.S.C. § 2253(c) (2).
IT IS SO ORDERED.
