Bray v. Hall
Filing
39
OPINION AND ORDER. The Petition for Writ of Habeas Corpus 3 is denied. The court grants a Certificate of Appealability limited only to the claims petitioner argues in this case; Grounds One(4), Two, Six. IT IS SO ORDERED. Signed on 7/30/2013 by Judge Michael H. Simon. (gw)
·,
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
Case No. 2:11-cv-01128-SI
ROBERT WAYNE BRAY,
OPINION AND ORDER
Petitioner,
v.
GUY HALL,
Respondent.
C. Renee Manes, Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
Ellen F. Rosenblum, Attorney General
Nick M. Kallstrom, 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 his state convictions on
four counts of Encouraging Child Sexual Abuse in the First Degree.
1 - OPINION AND ORDER
For the
reasons which
Corpus (#3)
follow,
the
Petition for Writ of Habeas
is denied.
BACKGROUND
Petitioner
worked
as
an
inmate-employee
at
within the Snake River Correctional Institution.
he had access
to
a
computer
(which was
a
call
center
In that capacity,
not assigned to, anyone
else), but he was not permitted to access the internet.
In May of
2001, it came to the attention of the prison that another inmateemployee at the call center, Inmate Nemo, was improperly accessing
the
internet
from
his
computer.
He
had
apparently
stolen
a
supervisor's password to access the internet, downloaded programs,
and possibly participated in online chat rooms.
officials
to
investigate
the
use
of
This led prison
computers by the
prison's
inmates.
During the course of this investigation,
that petitioner,
too,
it became apparent
had stolen a different supervisor's login
information and used it to obtain access
to the internet.
It
appeared from the investigation that petitioner had accessed the
internet in order to view child pornography.
Petitioner readily
admitted to accessing child pornography on the prison's computer,
but he claimed he was doing so only as part of his attempt to prove
his innocence as to prior convictions "because many people each day
2 - OPINION AND ORDER
download
child
pornography,
and
are
prosecuted." 1
not
Trial
Transcript, p. 59.
When authorities ordered the computer work stations locked,
petitioner was logged in as staff member Jerry Wolery.
told
staff
that
he
When
using Wolery' s
many
computer,
it yielded a large amount of pornography including at
least
images
depicting
children.
searched
for
Id
58.
authorities
password
months.
11
at
had been
Petitioner
It
was
petitioner's
apparent
that
petitioner had saved four of those 11 images to a separate folder
while leaving the rest in the "unallocated" space of the computer.
The pornographic images were burned ont ? a CD, and the computer's
hard drive was cleaned so it could go back into service at the
prison. 2
of
Id at 146.
pornography
A search of petitioner's cell yielded "a lot
pictures,
nudist
colony magazines,
and
several
catalogs of little girls in formal dress attire" but none of these
images matched those found on the computer.
Id at 21.
Based upon the 11 images found on petitioner's computer, the
Malheur Grand Jury indicted him on 11 counts of Encouraging Child
Sexual Abuse in the First Degree pursuant to ORS 163.684 and 11
counts
of Encouraging Child Sexual Abuse
pursuant to ORS 163.686.
in the
Second Degree
Respondent's Exhibit 102.
The first
Petitioner was in custody at the time due to his prior
involvement with child pornography.
2
At this point, the investigation was only for prison
disciplinary purposes, not any criminal prosecution.
Trial
Transcript, p. 61.
3 - OPINION AND ORDER
degree charges alleged that petitioner knowingly possessed child
pornography with the intent to either print those images or display
them on a
compute~
screen.
Respondent's Exhibit 102.
Petitioner proceeded to a bench trial where, at the close of
the State's case, he moved for a judgment of acquittal as to the
charges brought pursuant to ORS 163.684.
Specifically, he argued
that Encouraging Child Sexual Abuse in the First Degree required
that
he
have
the
intent
to
publication to a third party.
print
or
display
the
images
for
He reasoned that the statute was
intended to punish dealers of child pornography, not someone who
simply displayed the images to himself on a computer screen.
thus
believed he
could only be
Sexual Abuse in the Second Degree.
convicted of Encouraging Child
Trial Transcript, pp. 134-135.
The trial judge disagreed:
I think the statute means what it says, and a
display means that when somebody can see it,
and it doesn't say that you -- you have to
display to another person, it just simply says
display it.
The problem is that we don't
know.
I mean there's lots of ways he could
display this [to] other inmates.
It
there's no evidence that he was doing that,
but I did hear some disturbing evidence that
he was sending e-mails to people, and so I
don't know if -- the possibility's certainly
there for printing and displaying.
And the
other evidence that disturbs me in that regard
is the fact that all this stuff -- that he
apparently cleaned up the hard drive -- there
was evidence that he cleaned the hard drive a
couple weeks before all this happened, and the
materials were downloaded in the -- or created
in the previous few days before this happened.
So why did he clean the hard drive, and why
were -- since he, assuming his admission that
4 -
OP~NION
AND ORDER
He
he's been doing this for months was true , what
happened to that other stuff?
Did it go out
on the e - mails?
Was it printed and sold to
other inmates? Who knows, but that would at
least be some evidence that would survive a
judgment of acquittal that he intended to
print or display them~
So I'll go ahead and
deny your motion on that basis , and -- and you
can go forward with your case.
Id at 141-42.
The trial court ultimately c o nvicted petitioner of four counts
of .Encouraging Child Sexual Abuse in the First Degree based upon
the four images saved to the separate folder, but acquitted him on
this
charge
as
to
the
seven
images
found
in
the
computer's
unallocated space based on the finding that there was no intent to
display the images in the unallocated space .
Id at 183 .
~he
court
also convicted petitioner of all 11 counts of Encour,aging Child
Sexual Abuse in the Second Degree.
Id at 185 .
As a result, the
trial court sentenced petitioner to sentences totaling 160 months
in prison. 3
Id at 200 - 01 .
Petitioner took a direct appeal in which he argued, in part ,
that the trial court erred in denying his Motion for Judgment of
Acquittal on the charges brought pursuant to ORS 163 . 684 because
the
statute
someone else .
Court
of
requires
that
a
defendant
"display"
the
Respondent ' s Exhibit 104 , pp . 12 - 25 .
Appeals
concluded
that
" even
if
' intent
images
to
The Oregon
to
display '
applies only to situations in which a defendant intends to exhibit
3
This prison sentence was subsequently reduced to 80
months . Respondent ' s Exhibit 144 , p . 3 .
5 - OPINION AND ORDER
child pornography to third parties'
respect to
further
'intent to print. '"
determined
that
the
Bray,
petitioner
same is not true with
197 Or.
"failed
at 17.
It
preserve
any
App.
to
challenge to the sufficiency of the state's proof with respect to
whether
[petitioner]
did,
in fact,
intent to print the images."
Id.
Both petitioner and the State sought review in the Oregon
Supreme Court, and the Oregon Supreme Court allowed the petition
for review.
State v . Bray,
340 Or. 672 (2006).
Petitioner again
argued that under either an intent to print or intent to display
theory,
ORS
1 63 .6 84
was
not
intended to
incriminate those who
simply viewed child pornography for their own personal use, but was
instead aimed at those who distribute such material.
The Oregon
Supreme Court agreed that merely viewing child pornography did
constitute a
"display" of that material under ORS 163.684,
but
determined that the intent to print such images would render a
defendant guilty under ORS 163.684 (1) (a) (A) because it violated the
part of the statute intended to target producers of such material .
. State v.
Bray,
Just as
342 Or. 711, 719-20 (2007).
the Oregon Court of Appeals
had done,
the Oregon
Supreme Court determined that petitioner failed to preserve an
argument that there was
insufficient evidence of his intent to
print the images for his personal use.
The Oregon Supreme Court
also concluded any such motion would not have been well taken:
6 - OPINION AND ORDER
[Petitioner] did not argue before the trial
court that, if his construction of the statute
were incorrect , there was no evidence from
which a reasonable tr i er of fact cou l d find
that he intended to print the images of child
pornography that he had saved to his hard
drive for his own use .
As [petitioner]
implicitly recognized , there was evidence from
which a reasonable trier of fact could find
that he had both the means and the intent to
print the images saved to his hard drive.
Id at 721.
Petitioner next filed for post - conviction relief
( " PCR")
in
Umatilla County where the PCR trial court denied relief on all of
his claims;
Respondent ' s Exhibit 143 .
summarily affirmed that decision ,
denied review .
The Oregon Court of Appeals
and the Oregon Supreme Court
Respondent ' s Exhibits 146, 149 , 150 .
Petitioner filed his 28 U. S . C.
§
2254 Petition for Writ of
Habeas Corpus on September 19 , 2011 raising the following grounds
for relief :
Ineffective Assistance of Trial
Counsel in violation of his rights under
Article 1 ,
§
11 and 12 of the Oregon
Constitution as well as his rights under the
Fifth, Sixth, and Fourteenth Amendments to the
United States Constitution when his trial
attorney , Jason Pintler, was deficient in one
or more of the following particulars :
Ground One:
Trial counsel failed
(1)
discovery violations;
to
act
on
( 2)
Trial
counsel
failed
to
allow
petitioner to be present at all court
proceedings , including a critical pre trial Motion in Limine hearing ;
7 - OPINION AND ORDER
(3) Trial counsel failed to file motions
otherwise
suppressible
to
suppress
evidence;
( 4) Trial counsel failed to conduct · an
adequate and thorough investigation; and
(5) Trial counsel failed to object to the
destruction of evidence by prosecution
(State Police Detective Kent Stuart was
responsible for the protection of the
hard drive and intentionally destroyed
the evidence prior to the beginning of
trial proceedings . )
Ground Two : Denied Due Process and Equal
protection of the law secured by both the
Oregon
Constitution
and
the
Fourteenth
Amendment to the United States Constitution
when the prosecution engaged in prosecutorial
misconduct in the following particulars:
( 1) State Police Detective Kent Stuart
was responsible for the protection of the
computer hard drive and intentionally
destroyed the evidence prior to the
beginning of trial proceedings.
Ground Three: ORS 163.684 makes it a crime for
any person to possess child pornography with
the intent to display the material .
a. Does the word " display " in ORS 163.684
require an exhibition to another person?
b . and if so , did the state present
sufficient
evidence
that
defendant
intended to display the child pornography
to another person?
· Ground Four: Did the state present sufficient
evidence to support a finding that defendant
possessed or controlled the seven computer
generated images depicting child pornography
recovered
from
defendant ' s
computer ' s
unallocated space on the hard drive?
Ground Five : Is a police detective trained in
computer
forensics
qualified
to
testify
8 - OPINION AND ORDER
whether a computer generated
real or virtual images?
image
depicts
Ground Six: The Oregon Supreme Court made a
ruling against petitioner ' s issue of acquittal
based on supposition and not fact .
Petition for Writ of Habeas Corpus (#3 ) , pp . 5- 7 .
Respondent
because:
Oregon
(2)
asks
the
court
to deny
relief on the
Petition
(1) Grounds Two and Six were not fairly presented to the
state
and
courts,
are
now
procedurally
defaulted ;
Grounds Three(a) and Five fail to state a federal claim ; and
(3) Grounds One, Three(b ) and Four were correctly denied in state
court decisions that are entitled to deference .
DISCUSSION
I .
Unarqued Claims
An
application
for
a
writ
of
habeas
corpus
shall
not
be
granted unless petitioner can demonstrate that adjudication of a
claim in state court resulted in a decision that was:
(1) " contrary
to , or involved an unreasonable application of, clearly established
Federal
law ,
States; " or
facts
in
as determined by the
( 2)
light
proceeding."
Supreme Court of the
United
" based on an unreasonable determination of the
of
the
evidence
presented
28 U.S.C. § 2254(d ) .
in
the
State
court
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 ."
9 - OPINION AND ORDER
Harrington v . Richter , 131 S.Ct . 770,
786
Importantly,
(2011) .
it
is
petitioner who
meeting this substantial burden.
Silva v.
is
responsible
Woodford,
for
279 F.3d 825 ,
835 (9th Cir. 2002).
Petitioner's supporting memorandum addresses only sub-claim 4
of Ground One; Ground Two,
and Ground Six.
Petitioner does not
offer any argument to support the remainder of his claims, nor does
he attempt to refute the State's arguments as to why these claims
Because petitioner has failed to
do not entitle him to relief.
meet his burden of proof with respect to these issues, sub-claims
1, 2 , 3, S, and 6 of Ground One, and Grounds Three, Four, and Five
are denied.
II.
Procedural Default
A
habeas
petitioner
must
exhaust
his
claims
presenting them to the state's highest court,
by
fairly
either through a
direct appeal or collateral proceedings,
before a federal court
will consider the merits of those claims.
Rose v.
509,
519
(1982) .
Lundy,
455 U.S.
"As a general rule, a peiitioner satisfies the
exhaustion requirement by fairly presenting the federal claim to
the appropriate state courts .
state courts,
thereby
. in the manner required by the
'affording the
state courts a meaningful
opportunity to consider allegations of legal error. '"
Moore,
386 F.3d 896 ,
Hillery,
915-916
474 U.S. 254, 257,
(9th Cir. 2004)
(1986)).
Casey v.
(quo ting Vasquez v.
If a habeas litigant failed
to present his claims to the state courts in a procedural context
10 - OPINION AND ORDER
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.
v.
Carpenter,
u.s.
529 U.S.
446,
453
(2000); Castille v.
Edwards
Peoples,
4£9
346, 351 (1989).
A federal court is also precluded from reviewing the merits of
a claim when the state court has denied relief on the basis of an
independent
and
adequate
state
procedural
Coleman
rule.
v.
Thompson, 501 U.S. 722, 731-32 (1991); Vansickel v. White, 166 F. 3d
953,
957
(9th Cir.),
cert. denied,
528 U.S.
965
(1999 ) .
A state
procedural rule constitutes an ''independent" bar only if it is not
interwoven
with
federal
law
or
dependent
upon
a
federal
constitutional ruling.
Ake v. Oklahoma, 470 U.S. 68, 75 (1985 ) ; La
Crosse v.
F.3d 702,
Kernan,
244
704
(9th Cir.
2001).
A
state
procedural rule constitutes an adequate bar to federal court review
if it was "firmly established and regularly followed" at the time
it was applied by the state court. Ford v. Georgia,
424
498 U.S.
411,
(1991).
A petitioner is deemed to have "procedurally defaulted" his
claim if he
failed to comply with a
state procedural rule,
failed to raise the claim at the state level at all.
or
Edwards v.
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,
11 - OPINION AND ORDER
a federal court will not review the claim
unless the petitioner shows " cause and prejudice " for the failure
to pre s ent the constitutional issue to the state court , or ma kes 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
A.
Ground Two: Due Process and Equal Protection
Petitioner
process
(1986) .
and
alleges
equal
that
he
protection
was
in
denied
the
form
his
of
rights
to
due
prosecutorial
misconduct when State Police Detective Kent Stuart intentionally
destroyed the hard drive evidence prior to the beginning of the
trial proceedings.
Petitioner did not raise any such claim during
his trial and direct review , but he did raise the claim in his PCR
Petition.
Respondent ' s Exhibit 120 , p . 5 .
The PCR trial court specifically rejected this claim as barred
by state law , citing to Palmer v . Oregon , 318 Or . 352 (1994) , Lerch
v . Cupp , 9 Or . App . 508
438
(1991).
(1972) , and Hunter v . Maass , 106 Or . App .
Respondent's Exhibit 142 , p. 12 .
This line of cases
generally holds that , subject to a few narrowly - drawn exceptions
not applicable here , a petitioner may not raise a claim in a state
post - conviction proceeding which he could have raised during direct
review .
Petitioner contends that claims of prosecutorial misconduct
are
cognizable
Oregon's
in
federal
habeas
corpus
proceedings ,
and . that
restriction on exactly when to bring them renders the
12 - OP I NION AND ORDER
state corrective process inadequate to protect his rights under 28
U.S.C. § 2254 (b) (1) (B) (i).
To the contrary, had petitioner brought
this claim of prosecutorial misconduct during direct review where
he
clearly
had
properly before
merits.
the
opportunity
Oregon's
state
to
do
so,
it
would
have
courts
for
adjudication
on
been
its
However, because petitioner first raised it during his PCR
trial, he presented the claim to the PCR trial court in an improper
procedural context such that the merits were not considered.
such, he failed to fairly present his claim.
As
Because the time for
doing so passed long ago, the claim is now procedurally defaulted.
B.
Ground Six: Denial of Motion for Judgment of Acquittal
As Ground Six, petitioner argues that there was insufficient
evidence to convict him of any intent to print the pornographic
images, thus his convictions under ORS 163. 68 4 ( 1) (a) (A) violate the
Due Process Clause pursuant to Jackson v. Virginia,
(1979).
443 U.S.
307
Petitioner made no such objection at trial, and the Oregon
Court of Appeals specifically determined that petitioner "failed to
preserve any challenge to the sufficiency of the state's proof with
respect to whether [petitioner] did, in fact,
images."
Bray, 197 Or. App. at 17.
intend to print the
The Oregon Supreme Court also
concluded that petitioner had not preserved this Jackson claim in
13 - OPINION AND ORDER
the trial court. 4
longer
raise
Bray, 342 Or. at 721.
this
claim
in
Because petitioner may no
Oregon's
state
courts, -
it
is
procedurally defaulted.
Petitioner
argues
that
he
should
not
be
held
to
this
procedural default because he could not possibly anticipate the
Oregon Supreme Court's rationale so as to preserve his arguments.
The court finds this position to be untenable.
charged under
ORS
163. 68 4 based
upon
his
Petitioner was
"intent
display [child pornography] on the computer screen."
Exhibit 102.
these
to
print
or
Respondent's
If he felt there was insufficient evidence to prove
offenses
under
an
"intent
to
print"
theory,
he
had
the
opportunity to challenge this theory in the trial court and on
direct appeal.
Accordingly, petitioner's default of Ground Six is
not excused.
III. The Merits
A.
Standard of Review
As noted above,
an application for a writ of habeas corpus
shall not be granted unless adjudication of the claim in state
court
resulted
involved
Federal
an
law,
States;" or
in
a
decision
unreasonable
that
application
as determined by the
( 2)
was:
of,
( 1)
"contrary
clearly
to,
or
established
Supreme Court of the
United
"based on an unreasonable determination of the
4
While the Oregon Supreme Court also rejected this claim on
its merits, this fact does not alter the procedural analysis. See
Harris v. Reed, 489 U.S. 255, 264 n. 10.
14 - OPINION AND ORDER
facts
in
light
proceeding ."
fact
of
the
evidence
28 U. S . C .
presented
2254(d ) .
§
are presumed correct,
in
the
State
court
A state court ' s findings of
and petitioner bears
the
burden of
rebutting the presumption of correctness by clear and convincing
evidence.
A
28 U. S.C.
state
§
court
2254 (e) (1).
decision
established precedent
if
the
is
"contrary
state
court
to
clearly
applies
a
rule
that
contradicts the governing law set forth in [the Supreme Court's]
cases" or " if t h e state court confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme] Court
and
nevertheless
precedent ."
at
arrives
Williams
v.
a
result
Taylor ,
different
529 U.S .
362,
from
405 - 06
[that]
(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 app li es that principle to the facts of the prisoner's
case."
Id at 4 1 3.
The " unreasonable application " clause requires
the state court decision to be more than incorrect or erroneous.
Id at 410 .
The state court ' s application of clearly established
law must be objectively unreasonable .
When
a
state
court
reaches
a
Id at 409 .
decision
on
the
merits
but
provides no reasoning to support its conclusion , the federal habeas
court must conduct an independent review of the record to determine
. whether the state court clearly erred in its application of Supreme
15 - OPINION AND
ORD~R
Delgado v. Lewis, 223 F.3d 976,
Court law.
982
(9th Cir. 2000).
In such an instance, although the court independently reviews the
rec ord ,
it still lends deference to the state court's ultimate
Harrington v . Richter, 131 S.Ct. 770 , 784-85
decision.
(2011) ;
Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
B.
Analysis
In his remaining claim pled in Ground 1 (4) , petitioner alleges
that his trial attorney was const ituti ona ll y ineffective when he
failed to conduct an adequate and thorough investigation.
Because
no Supreme Court precedent is directly on point that corresponds to
the facts of this case, the court uses the general two-part test
established by the Supreme Court to determine whether petitioner
Knowles v. Mirzayance,
received ineffec tive assistance of counsel.
556 U.S. 111, 122-23 (2009).
counsel's
performance
Due
performance,
fell
below
Strickland v.
reasonableness.
( 1 984) .
First, petitioner must show that his
to
the
an
Washington,
difficulties
courts must
objective
indulge a
in
standard
466 U.S.
668,
evaluating
of
686-87
counsel's
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.
whether
the
petitioner
probability that,
but
16 - OPINION AND ORDER
The appropriate test f or prejudice is
can
for
show
"that
counsel's
there
is
unprofessional
a
reasonable
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 .
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, 129 S . Ct.
at 1420 .
As
in his
Petition for
Writ
of Habeas
Corpus,
petitioner
alleged in his PCR Petition that trial counsel failed to conduct an
adequate and thorough investigation .
The PCR trial court made
findings relevant to this claim as follows :
20 . Trial counsel thoroughly investigated,
and even hired an expert witness .
Trial
counsel filed a formal request for discovery.
Trial counsel also obtained extraordinary
expenses for an expert witness . Trial counsel
sought authorization from the court
for
extraordinary expenses to hire a computer
expert , Tommy Smith, for the defense .
The
court allowed trial counsel's extraordinary
expenses request, with the State paying for
the defense expert ' s services.
21 . Trial counsel obtained key evidence for
the defense expert to review .
Trial counsel
filed a motion to compel production of key
evidence, including the computer itself. The
court granted trial counsel's request and
ordered the State to produce the evidence for
the
defense
expert
to
review .
Tommy
Smith .
. assisted the defense for at least
the maximum amount of time authorized by the
court , including his testimony at trial . Mr.
Smith provided extensive testimony for the
defense at trial .
Petitioner has failed in
his burden of proof to show any evidence,
other than his own testimony, that additional
investigation
and
the
fruits
of
that
17 - OPINION AND ORDER
investigation would have produced a different
result at trial.
Carias v . State of Oregon ,
148 Or . App. 540 (1997). He has failed in his
burden of showing prejudice .
29.
Mr. Smith initially claimed that not
examining
the
hard
drive
affected
his
investi_
gation .
He later admitted, however ,
that "The original hard drive wouldnt've had a
lot more data that either could have or could
not have helped the -- defense ' s case. " When
asked again by trial counsel if having the
entire hard drive available might have been
harmful to the defense, Mr . Smith responded
with a simple and profound , " Yes ."
Based on
his expert review and analysis, Mr. Smith also
agreed , "I think a portion of the images
probably were put on the computer by Robert
Bray visiting sites ."
The pictures found in
the allocated space of the computer were
"saved purposefully, probably to view later ."
Petitioner has not shown that Mr. Smith's ·
review of the physical hard drive would have
found any evidence helpful to the defense in
any meaningful way .
Respondent's Exhibit 142, p. 8, 10-11 .
In his supporting memorandum , petitioner focuses on counsel's
failure to present available evidence at trial that petitioner had
no ability to print from the computer to which he was assigned and,
knowing this,
could not possibly have formed the intent to print
necessary to support his convictions under ORS 163.684.
asserts
that
because
the
PCR
trial
specifically address this aspect
court 's
of his
decision
failure
He also
does
not
to investigate
claim, it is not entitled to deference and warrants habeas corpus
relief as it was based upon an unreasonable determination of the
facts in light of the evidence presented to it.
18 - . OPIN I ON AND ORDER
Because the PCR trial court did not provide any rationale for
its decision on this claim , the court shall conduct an independent
review of the record .
The court does , however , continue to lend
deference to the state - court decision denying relief on this claim.
See Richter , 131 S.Ct . at 784-85 .
At his PCR trial, testified that he did not have the ability
to print
from
his
computer,
and that
machine would have proven this.
the
hard drive
He argued that
from his
trial
counsel
should have obtained a mirror image of the hard drive from his
computer, or send his expert (Tommy Smith) to the State 's facility
to thoroughly investigate the hard drive .
140, pp . 13-14.
Respondent's Exhibit
Petitioner acknowledged, however, that at the time
Smith went to the State's facility, the hard drive had already been
wiped clean and he was only provided with the inculpatory images on
a CD which accounted for 1 % of the hard drive's capacity .
14 .
Id at
Petitioner also recognized that Smith had testified at the
criminal trial that having full access to the hard drive before it
was wiped clean may have been damaging to his case .
Id at 15;
Trial Transcript, p. 147.
Because there was
no dispute
that
the
hard drive was
not
available to counsel, counsel ' s performance did not fall below an
objective
standard of
mirror image of that
reasonableness
unit~
when he
did not
obtain a
Similarly , even if counsel should have
somehow obtained information that did not exist, petitioner cannot
demonstrate prejudice where he made no showing to the PCR trial
19 - OPINION AND ORDER
court , aside from his own self - serving testimony ,
that there was
information on the hard drive that would have been helpful to his
defense.
(2002)
See Horn v . Hill , 180 Or . App. 139 , 148-49, 41 P.3d 1127
("Where
evidence
omitted
from
a
criminal
produced in a post - conviction proceeding
trial
is
not
. its omission cannot
be prejudicial " ) ; see also Dows v. Wood , 211 F . 3d 480, 486 - 87 (9th
Cir. 2000) (petitioner ' s self - serving affidavit regarding potential
testimony
of
another
is
assistance of counsel) .
insufficient
For these
to
reasons,
prove
ineffective
upon an independent
review of the record , petitioner is not entitled to habeas corpus
relief under either 28 U. S . C . § 2254(d) (1) or§ 2254(d) (2) .
CONCLUSION
For the reasons identified above ,
Habeas Corpus
(#3)
is denied.
the Petition for Writ of
The court grants a Certificate of
Appealability limited only to the claims petitioner argues in this
case ; Grounds One(4) , Two, Six .
IT IS SO ORDERED .
DATED this
3f71-'day
of
July:;;;~
- d 4 e l H. Simon
United States District Judge
20 - OPINION AND ORDER
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