Bravo v. Coursey

Filing 31

OPINION AND ORDER. Signed on 01/07/2015 by Judge Malcolm F. Marsh. (pvh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
BLAS RAMOS BRAVO,
Petitioner,

v.
RICK COURSEY, Superintendent,
Eastern Oregon Correctional
Institution,
Respondent.
NELL BROWN
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 N.E.
Salem, Oregon 97301-4096
Attorneys for Respondent
MARSH, Judge

1 -- OPINION AND ORDER

2:13-cv-01048-MA
OPINION AND ORDER

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.
BACKGROUND

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. 1

Additionally,

petitioner was

convicted of one count of Tampering with a Witness as a result of
telephone

calls

indicted

(Marion

petitioner
County

made

Case

No.

to

V. M.

after

06C49817).

petitioner
The

trial

was

court

imposed an upward departure sentence of 60 months for the sexual
abuse conviction, and a consecutive 60-month departure sentence for
tampering with a witness.

Resp. Exh. 101 at 4-7.

Petitioner filed a direct appeal assigning error to the trial
court's

refusal

to

give

a

proposed

jury

imposition of upward departure sentences.

instruction

the

Resp. Exhs. 106 & 108.

The Oregon Court of Appeals affirmed without opinion,
1

and

and the

Petitioner was convicted of having s'ex with V.M. between
January 1, 2005 to November 13, 2005.
Resp. Exh. 102. V.M. gave
birth to a child on March 4, 2006. Resp. Exh. 103, TR at 39-40.
DNA testing supports the conclusion that petitioner is the
child's father.
Id. at 86.

2 -- OPINION AND ORDER

Oregon Supreme Court denied review.

225 Or. Ap.

State v. Bravo,

219, 200 P.3d 641, rev. denied, 346 Or. 364 (2009).
Petitioner subsequently sought state post-conviction relief on
the

basis

that

he

received

Resp. Exh. 129 at 8-10.
the

ineffective

assistance

of

counsel.

The post-conviction court denied relief,

Oregon Court of Appeals affirmed without opinion,

Oregon Supreme Court denied review.

and the

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.
DISCUSSION
I.

State Law Violations (Grounds One, Two and Three)

In Grounds for Relief One, Two, and Three, petitioner alleges
that

the

trial

requested

court

instruction

erred
on

in

the

refusing

defense

of

to

give

petitioner's

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
United States." 28 U.S.C.

§

2254(a); Swarthout v. Cooke, 131 S.Ct.

859, 861 (2011); Wilson v. Corcoran, 131 S.Ct. 13, 15 (2010)
curiam) .

Because

Grounds

th~

for

Relief

One,

Two

and

Three

(per

are

premised upon state law violations, habeas relief is not warranted.
3 -- OPINION AND ORDER

II.

Procedural Default (Ground Six)

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.
U.S. 838,

845, 848

(9'" Cir. 2011).

O'Sullivan v. Boerckel, 526

(1999); Cooper v. Neven, 641 F.3d 322, 327-28

Habeas review of procedurally defaulted claims is

precluded absent a showing of cause and prejudice, or that failure
to

consider

the

federal

miscarriage of justice.

claims

will

Coleman v.

result

Thompson,

in

a

fundamental

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

supervision."

indeterminate

terms

of post-prison

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.
Resp.'s Exhs. 142 & 145.

4 -- OPINION AND ORDER

Compare Resp.'s Exh. 130 with

Accordingly, ground six is procedurally

defaulted.

Because

petitioner

offers

no

basis

to

excuse

his

procedural default, habeas relief is precluded.
III. Ineffective Assistance of Counsel (Grounds Four and Five)

In Grounds for Relief Four and Five, petitioner alleges that
trial counsel rendered ineffective assistance by failing to

(1)

ensure

was

that

knowing,

petitioner's

waiver

of

voluntary and intelligent;

his
and

right
(2)

to

testify

object to the trial

court's use of the victim's age as an aggravating factor to impose
an

upward

Degree. 2

departure

sentence

for

Sexual

Abuse

in

the

Second

Respondent moves the court to deny habeas relief on the

basis that the state court's rejection of petitioner's ineffective
assistance claims is entitled to deference.
A.

Standards

A petition for writ of hapeas 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

2

to,

or

involved

an

unreasonable

In a footnote, petitioner attempts to raise an additional
claim that trial counsel was ineffective for failing to object to
a comment made by the court after the jury returned its verdict.
Because this claim was not raised in his habeas petition, I
decline to address it.
See Rule 2(c) (1) of the Rules Governing
Section 2254 Cases in the United States District Courts;
Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994).
Additionally, it is worthy of note that the claim is procedurally
defaulted and petitioner has failed to demonstrate that it is
"substantial" so as to excuse the default under Martinez v. Ryan,
132 S.Ct. 1309 (2012).

5 -- OPINION AND ORDER

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).
bears the burden of proof.

&

Petitioner

Cullen v. Pinholster, 131 S.Ct. 1388,

1398 (2011).

A claim of ineffective assistance of counsel,
couns~l's

petitioner to prove that
that there is a

requires the

performance was deficient, and

reasonable probability that,

but for counsel's

errors,

the result of the proceeding would have been different.

Bell v.

Cone,

U.S.

535 U.S.

685,

Williams v.

(2002);

Strickland v. Washington,

362, 390-91 (2000);

687-88

695

Taylor,

466 U.S.

529
668,

(1987).

To prove deficiency of performance, petitioner must show that
counsel's

representation

reasonableness.
(internal

fell

Lafler v.

quotations

below

Cooper,

omitted).

an

objective

132 S.Ct.

When

a

standard

1376,

state

1384

prisoner

of

(2012)
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,
S.Ct.

10,

13

(2013);

Cullen,

131

S.Ct.

at

Burt v. Titlow, 134
1403.

Counsel

is

"'strongly presumed to have rendered adequate assistance and made
all

significant

decisions

6 -- OPINION AND ORDER

in

the

exercise

of

reasonable

judgment.'n

profe~sional

Strickland,

134

Burt,

S.Ct.

at

17

(quoting

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,
errors,

but for counsel's

the result of the proceeding would have been different.

Harrington,

131

S.Ct.

at

792;

529

Williams,

U.S.

at

391.

A

reasonable probability is a probability sufficient to undermine
confidence

in

the

Williams,

outcome.

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.

B.

Analysis

1.

Waiver of Right to Testify

In Ground for Relief Four,

petitioner claims that defense

counsel was ineffective because he failed to ensure that petitioner
knowingly,
testify.
deficient

voluntarily,

and

Specifically,
for

failing

to

intelligently

petitioner
inform

waived his

argues

petitioner

that
that

right

to

counsel

was

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

7 -- OPINION AND ORDER

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:
Ladies
with [V.M.]
to be -- is
or not
thought she

and gentlemen of the jury, my client had sex
They have had a child. The question is going
at the time that he h.ad sex with her, whether
. he knew she was 17 or whether or not he
was older.

* * * * *
There's an affirmative defense [that] Mr. Bravo
. reasonably believed that she [was] over the age of
19, when they [had] sex. [V.M.] testified that she
initially told Mr. Bravo that she was 19.
She hid the
fact that she was going to school. When he met her, she
was working at the flea market.
When she was going to
school she would leave, say that she was going to her
mom's, and it wasn't until about the time that she became
pregnant, she found out she was pregnant, that there was
an issue to Mr. Bravo finding that she was, in fact, 17.
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,
trial

counsel

never

8 -- OPINION AND ORDER

told

him

that

he

could

testify

but

and/or

affirmatively advised him not to testify.
According to petitioner,

had he taken

Resp. Exh. 140 at 7-8.

the

stand he would have

testified that V.M lied about her age, and that he never had sex

Id. at 8.

with V.M. after learning of her true age.
Petitioner's trial attorney,
version

of

what

transpired

prior

however,
to

presented a different

trial.

presented to the post-conviction court,

In

an

affidavit

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:
Prior to trial, I discussed the issue of waiving jury
with Mr. Bravo in addition to his right to testify. Mr.
Bravo repeatedly indicated that he did not want to
testify. * * * As part of our discussion, Mr. Bravo and
I discussed his extensive criminal history which could
have been used to impeach him.
In addition,
I met with Mr.
Bravo while he was
incarcerated regarding his case. During that interview,
Mr. Bravo indicated that the victim initially told him
she was 19 when he met her in September or October 2004.
He informed me that she continued to tell him she was 19
during the
initial stages of their
relationship.
However, Mr. Bravo indicated that he found out she was
lying to him and she told him she was in fact 17 years
old [in] approximately March 2005.
Mr. Bravo indicated
that he continued the relationship with her and continued
to have sex with [her] after he learned she was 17.
Resp. Exh. 134 at 'lI'lI 2

&

3 (emphasis added) . 3

3

Attorney Obert's handwritten. notes (attached to his
affidavit and presented to the post-conviction court), support

(continued ... )
9 -- OPINION AND ORDER

Additionally, trial counsel explained the strategic decision
not to put petitioner on the stand as follows:
During the trial in this matter, the victim indicated
that she had lied to Mr. Bravo about her age when ·[she]
met him and told him she was 19 years old.
The victim
continued to lie about her age during their relationship,
telling him she was 19 and had graduated high school.
* * * The victim's testimony is evidence that the jury
could rely upon in making a decision about the case and
establish the affirmative defense on Mr. Bravo's behalf.
It was our argument that the State court not establish
when the victim told Mr.
Bravo she was 17 and
consequently, Mr. Bravo would have a defense to the
charge.
Had Mr. Bravo testified,
he would have'
established that he did have sex with the victim after
learning she was 17 which conclusively blew any possible
defense he may have had.
Id. at

~

4 (emphasis added).

At the conclusion of the post-conviction proceeding, the postconviction judge held that Attorney Obert was credible, and that
counsel presented the only reasonable defense available:
The attorney took notes of the conversations with
petitioner.
That was before trial, so certainly well
before this proceeding. They prove petitioner certainly
did not want to testify, and that he had sex with the
victim after he knew she was 17.
* * * Petitioner's
record is nine person crimes and five non-person. It is
a reasonable strategy to at least try to keep his record
out by not calling petitioner. It's a trade off. The
attorney could not call him . .He would have had to commit
perjury. The attorney could not allow that to happen.
And, actually, what [petitioner] told his lawyer squares
exactly with what the complaining witness already said.

* * * * *

3(. .. continued)
his attestations. See Resp. Exh. 134 (Obert Aff., Exhs. A & B).
10 -- OPINION AND ORDER

And, truthfully, I don't know what other defense the
attorney could have offered.
This was not a great
defense, but it's the only one that came to mind. So his
behavior was reasonable.
I find no inadequacy in any
regard, I find no prejudice.
Resp.'s Exh. 140 at 16-17 (emphasis added).
Petitioner has failed to demonstrate that the post-conviction
court's
testify;

factual

findings

that

(1)

petitioner

did

not

want

to

(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
28 u.s.c.

presented.
findings,

§

2254 (d) (2) . 4

In light of these factual

and even assuming that trial counsel failed to fully

discuss the importance of petitioner's testimony to the affirmative
defense of mistake or ignorance, petitioner has not demonstrated
that counsel's performance was constitutionally deficient or that
petitioner suffered
On

the

pr~judice.

contrary,

it

is

well

settled

strategic decisions are given deference,

that

an

attorney's

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 (9th Cir. Dec. 29,
4

Because I find that the post-conviction court's findings
are not unreasonable under 28 U.S.C. § 2254(d) (2), I need not
address whether the factual findings also are entitled to a
presumption of correctness that must be overcome with clear and
convincing evidence under§ 2254(e) (1).
See Murray v. Schriro,
745 F.3d 984, 1000-01 (9~ Cir. 2014) (declining to resolve the
issue); Burt, 134 S.Ct. at 14 (same).

11 -- OPINION AND ORDER

2014).

Attorney Obert's strategic decision to raise the defense of

mistake or ignorance, while at the same time not putting petitioner
on the stand, was reasonable trial strategy given the fact that
petitioner

(1)

did not want to testify;

(2)

admitted he had sex

with the victim after learning she was 17 years old; and (3) had an
extensive criminal history.

Moreover, the Ninth Circuit recently

opined that trial counsel must comply with the ethical obligation
not to suborn perjury and, therefore, is not deficient in failing
to call a witness who intends to commit perjury.

Mann,

2014 WL

7345864 *5.
Petitioner

similarly

cannot

demonstrate

that

he

suffered

prejudice under Strickland based upon the assertion that he was
( 1)

not

fully

advised of

affirmative defense;

the

and/or

testify in his own defense.

(2)

import

of

his

testimony

to

his

deprived of the opportunity to

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

to present

based on

counsel's

refusal

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)).

12 -- OPINION AND ORDER

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.

§

2.

2254

(d)

(1).

Departure Sentence

After

the

jury

returned

guilty verdicts,

the

prosecution

requested that the trial court present three sentencing enhancement
factors to the jury.
(1)

did

the

Resp. Exh. 103 at 124-25.

defendant

engage

in

The jury was asked

persistent

involvement

repetitive assaults unrelated to the current crime;

in

(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.

13 -- OPINION AND ORDER

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:
The aggravating factors with regard to both cases in
the
Court's
mind,
the
victim's
age
lengthy
incarceration prior to these two cases.
One was a
Measure 11; the kidnapping in the second degree did not
deter the defendant's criminal conduct.
The defendant
has demonstrated an unwillingness to conform his conduct
to
the
legal
requirements
of
this
country;
notwithstanding that he is a national from Mexico.

* * * * *
Let's go to the sexual abuse two case first.
Mr.
Bravo, the sentence of the court will be that the Court
accepts the three findings by the jury -- special jury
verdict findings, your prior criminal history, the age of
the victim will result in an upward departure; total of
60 months -- a durational departure I should say, 60
months.
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.

5

Petitioner argues that "but for trial counsel's failure to object,
5

Because V.M.'s age was a necessary element to prove Sexual
Abuse in the Second Degree, Oregon law prohibited its use as an
aggravating factor for sentencing.
Or. Admin. R. 213-008-0002(2)
(2005).

14 -- OPINION AND ORDER

the presumptive sentence would have been 31-36 months in prison."
Pet.

Brief

in

Support

(#30)

at

15.

Additionally,

petitioner

contends that the state post-conviction court's finding that the
trial court did not use V.M.'s age as an aggravating factor is
unreasonable.
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:
The jury made three findings of aggravating factors.
None of them were age-related.
Although the judge
mentioned her age as a consideration, it doesn't mean it
was used as an aggravating factor. This court also notes
that the departure factor issue was argued on appeal and
the Court of Appeals affirmed without opinion.
Resp. Exhs. 140 at 16 & 141 at 2.
Although a close question, I conclude that the post-conviction
court's

finding

enhancement

that

factor

the

for

victim's

imposing

unreasonable given the fact

that

a
( 1)

age

was

departure

not

used

sentence

as
is

an
not

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 meritless.

15 -- OPINION AND ORDER

Trial counsel is not constitutionally

deficient for failing to make a meritless objection.

Juan H.

Allen,

408 F.3d 1262, 1273 (9'h Cir. 2005); Rupe v. Wood,

1434,

1445

(9th

Cir.

not

probability that,

had

counsel objected to the consideration of the victim's age,

the

there

1996) .
is

a

reasonable

petitioner

93 F.3d
has

demonstrated that

Further,

v.

trial court would not have imposed the same departure sentence
based

upon

the

Accordingly,

jury's

the

findings

of

three

post-conviction court's

enhancement

factors.

conclusion that

trial

counsel was not constitutionally ineffective is neither contrary
to, nor an unreasonable application of clearly established federal
law. 6

28 U.S.C.

§

2254 (d) (1).
CONCLUSION

Based on the foregoing,
habeas corpus
with prejudice.

(#2)

is DENIED,

petitioner's petition for writ of
and this proceeding is DISMISSED,

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
6

Petitioner's additional argument that trial counsel's
failure to object to the age enhancement prejudiced his ability
to raise a Blakely claim on appeal lacks merit given (1) the
post-conviction court's reasonable conclusion that the victim's
age was not used as an enhancement factor; and (2) the fact that
all three enhancement factors used by the trial court were found
by a jury beyond a reasonable doubt.
See Blakely v. Washington,
542 U.S. 296 (2004) (holding that the use of any fact increasing
the penalty of a crime beyond the prescribed statutory minimum,
other than a prior conviction, must be found by a jury beyond a
reasonable doubt) .

16 -- OPINION AND ORDER

the victim's age as an enhancement factor (Ground for Relief Five).
See 28 u.s.c. § 2253(c) (2).
IT IS SO ORDERED.
DATED this

~day

of January, 2015.

Malcolm F. Marsh
United States District Judge

17 -- OPINION AND ORDER