Brewer v. Taylor
OPINION AND ORDER: The Court declines to adopt the Findings & Recommendation. The Court also GRANTS Petitioner's Amended Writ of Habeas Corpus, VACATES his conviction and sentence as to Count 1 and Count 2 of the Amended Indictment for Attempted Murder, and ORDERS Respondent to release him unless the State of Oregon retries him within 60 days. Signed on 3/28/2017 by Judge Marco A. Hernandez. (jp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JERRI TAYLOR, Superintendent,
Two Rivers Correctional Inst.,
Federal Public Defenders
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
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OPINION & ORDER
Ellen F. Rosenblum
Frederick M. Boss
Samuel A. Kubernick
Department of Justice
1162 Court Street NE
Salem, Oregon 97301
Attorneys for Respondent
HERNÁNDEZ, District Judge:
Petitioner, an inmate at the Two Rivers Correctional Institution, brings this habeas corpus
action pursuant to 28 U.S.C. § 2254. Magistrate Judge John Acosta issued his Findings and
Recommendation (“F&R”) on October 20, 2016, recommending that Petitioner’s Amended
Petition for Writ of Habeas Corpus be denied. ECF 37. Petitioner timely filed his objections to
the F&R. ECF 42. The Court declines to adopt the F&R and orders that the Amended Petition for
Writ of Habeas Corpus be GRANTED.
At this point, the parties are well versed in the facts giving rise to Petitioner’s conviction;
a detailed recitation of the factual background can be found in Judge Acosta’s F&R and the
Court will not repeat it here.
A jury convicted Petitioner on two charges of Attempted Murder and the trial judge
sentenced him to 180 months of imprisonment followed by a period of post-prison supervision.
Petitioner alleges an ineffective assistance of counsel claim on the basis that his “trial attorney
failed to take exception to the trial court’s refusal to instruct the jury that Menacing constitutes a
lesser-included offense of Attempted Murder, thereby precluding appellate review of the issue.”
Pet. Br. at 15, ECF 23. The post-conviction relief (“PCR”) court denied relief stating:
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I’m denying post-conviction relief. I’m finding that the
[trial] Court made it clear that it wasn’t going to give any [lesserincluded offense instructions] on the Attempted Murder.
The attorney did not except and decided instead to argue all
or nothing on Attempted Murder. That was not an unreasonable
strategy decision based on the facts presented in this case. . . .
The appellate attorney could not raise the [lesser-included
offense] menacing since the issue was not preserved. Therefore,
there’s no inadequacy or any prejudice on the part of the appellate
And. Finally, there’s insufficient evidence of any
inadequacy or any prejudice by trial attorney.
Resp. Ex. 125 at 14–15, ECF 16. Petitioner argues that his claim is entitled to de novo review as
opposed to the deferential review under 28 U.S.C. § 2254(d), because his claim was not
“adjudicated on the merits.” Petitioner asserts that the PCR court misconstrued the link between
the claimed error and the resulting prejudice. Specifically, that the “PCR judge analyzed the
claim by asking whether the trial court would have changed its ruling had Petitioner’s attorney
taken exception, instead of asking whether Petitioner would be precluded from pursuing an issue
on appeal.” F&R at 7. The F&R found that, notwithstanding the PCR court’s error, Petitioner’s
claim was “adjudicated on the merits” and he was not entitled to de novo review. F&R at 8.
Applying deferential review under § 2254, the F&R found that Petitioner’s ineffective assistance
of counsel claim failed and he was not entitled to habeas relief. Id.at 14–15. Finally, the F&R
recommended that Petitioner should be denied a certificate of appealability because he failed to
make a substantial showing of the denial of a constitutional right. Id. at 15.
Petitioner made three objections to the F&R. First, he renewed his argument that the PCR
court did not adjudicate his claim “on the merits” and he was entitled to de novo review. Obj. to
F&R at 1–2. Second, Petitioner objected to the F&R’s finding that he would not have prevailed
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on appeal had he preserved a challenge to the denial of the Menacing instruction. Id. at 3. Third,
Petitioner objected to the F&R’s recommendation to deny his certificate of appealability.
When a party objects to any portion of the Magistrate Judge’s F&R, the district court
must make a de novo determination of that portion of the Magistrate Judge’s report. 28 U.S.C.
§ 636(b)(1); Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009); United States v. ReynaTapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Proper Standard of Review
Pursuant to 28 U.S.C. § 2254(d), habeas corpus relief shall not be granted with respect to
any claim that was “adjudicated on the merits in State court proceedings unless the
adjudication . . . 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;” or (2) was
“based on an unreasonable determination” of the facts. In the Ninth Circuit:
[A] state has ‘adjudicated’ a petitioner’s constitutional claim ‘on
the merits’ for purposes of § 2254(d) when it has decided the
petitioner’s right to post conviction relief on the basis of the
substance of the constitutional claim advanced, rather than denying
the claim on the basis of a procedural or other rule precluding state
court review on the merits.
Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004). Deferential review is inapplicable where
the state court does not reach a decision on the merits and courts instead apply de novo review.
Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004).
Ineffective assistance claims are analyzed under the two-part Strickland test: (1)
petitioner must show that counsel’s performance was constitutionally deficient; and (2) that the
deficient performance prejudiced the petitioner so “as to deprive the defendant of a fair trial, a
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trial whose result is unreasonable.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Where
the claimed deficiency involves the failure to preserve an issue for appeal “the appropriate
prejudice inquiry asks whether there is a reasonable likelihood of a more favorable outcome on
appeal had the claim been preserved.” Clark v. Ryan, No. CV-09-8006-PCT-JAT(JRI), 2011 WL
7553504, at *53 (D. Ariz. Nov. 18, 2011) (quoting Davis v. Sec’y of Dept. of Corrections., 341
F.3d 1310, 1316 (11th Cir. 2003)); see also Burdge v. Belleque, No. 07-35685, 2008 WL
3853445, at *5 (9th Cir. Aug. 15, 2008) (holding that trial counsel’s failure to preserve an
sentencing issue for appeal under Oregon law prejudiced petitioner because the outcome would
have been different on appeal).
Here, the PCR court misapplied the prejudice prong of Petitioner’s ineffective assistance
of counsel claim. The PCR court incorrectly framed the prejudice inquiry by asking whether
there was a reasonable likelihood that the trial court would have changed its decision. The
proper inquiry should have been whether there was a reasonable likelihood that Petitioner would
have prevailed on appeal. The Court agrees with Petitioner that the PCR court never decided his
case “on the substance of the claim advanced.” Obj. to F&R at 3 (quoting Lambert, 393 F.3d at
967). In other words, the PCR court adjudicated a different claim from the one Petitioner
advanced. Accordingly, the Court finds that there was no “adjudication on the merits” for
§ 2254(d) purposes and Petitioner’s claim is entitled to de novo review.
Petitioner’s Ineffective Assistance of Counsel Claim
Once more, to show ineffective assistance of counsel, a petitioner must satisfy both parts
of the Strickland test. First, the petitioner “must show that counsel’s representation fell below an
objective standard of reasonableness.” Strickland, 466 U.S. at 687. “Judicial scrutiny of
counsel’s performance must be highly deferential.” Id. Further, courts “must indulge a strong
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presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance” and the petitioner must overcome the presumption that the “challenged action might
be considered a sound trial strategy.” Id. at 689 (quotation and citation omitted).
Second, the petitioner must show that counsel’s errors prejudiced the defense “as to
deprive the defendant of a fair trial, a trial whose result is unreasonable.” Id. at 687. The
prejudice prong requires showing that “but for counsel’s unprofessional errors, the result would
have been different.” Id. at 694. “That requires a ‘substantial,’ not just ‘conceivable,’ likelihood
of a different result.” Cullen v. Pinholster, 563 U.S. 170, 183 (2011) (quoting Harrington v.
Richter, 562 U.S. 86, 105 (2011)).
Trial Counsel’s Representation
At trial, Petitioner was represented by Charles Wiseman and Dawn McIntosh. During
opening statements, McIntosh told the jury that “[t]here’s lesser included offenses, and that’s
what [Petitioner] is guilty of, something less.” Tr. at 54, ECF 17. 1 After the close of the State’s
case, the jury took a recess and McIntosh moved for jury instructions on three lesser-included
offenses: Assault in the Third Degree, Reckless Endangering, and Menacing. Tr. at 330–40. The
trial court refused to give the instructions and the Defense proceeded with its case. Tr.341–43.
After closing arguments, the trial court gave the jury its instructions and the jury retired for
deliberations. Tr. 435–454. At that point, the trial court solicited exceptions from the parties and
defense counsel took exception to the court’s rulings as to the Assault in the Third Degree and
Reckless Endangering instructions. Tr. at 454. Defense counsel did not take exception to the trial
court’s refusal to give the Menacing instruction. Id.
Citations to “Tr.” refer to the trial record transcript, filed here as ECF No. 17.
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During PCR proceedings, the State submitted an affidavit from Wiseman explaining
defense counsel’s reasoning for failing to except the trial court’s refusal to give the Menacing
On the subject of lesser included offenses, both of the victims were
injured, albeit one just barely, and so Dawn McIntosh and I argued
that this should give rise to the lesser included offense of assault.
The lesser included offense (LIO) of menacing, although we
offered it, frankly understates the severity of the crime and I did
not expect we would receive the instruction. I felt that to insist on
anything less than assault would ignore the seriousness of the
crime and create a negative credibility factor with the jury with
regard to both victims. After all, Mr. Brewer could have fired into
the air, but he shot at the victims. To the best of my recollection,
he fired and hit one of them in the leg and may have shot the other
in the back. He did not shoot way over their heads, which would be
much more in keeping with a menacing LIO. I wanted to be
credible with the jury and wanted a lesser included offense that
After the judge ruled that he would not permit any LIOs for the
attempted murder charges, I realized that strategically, it would be
wiser to proceed without LIOs and force the jury to make an “all or
nothing” decision on the attempted murder charges. As I argued to
the jury, the fact that petitioner could have but did not kill anyone
based on his sheer proximity to the victims demonstrated that he
did not intend to kill them. More likely, he was just trying to scare
Resp. Ex. 117 at 1–2. Petitioner argues that counsel acted objectively unreasonably by not taking
exception to the trial court’s refusal to give the Menacing instruction. Pet. Br. at 20. Specifically,
Petitioner asserts that there was no conceivable strategic decision for failing to except. Id.; see
also Higgins v. Renico, 470 F.3d 624, 632 (6th Cir. 2006) (citing Strickland, 466 U.S. at 689)
(holding that counsel “cannot be adjudged ineffective for performing in a particular way in a
case, so long as the approach taken ‘might be considered sound trial strategy’”).
At issue is defense counsel’s failure to except. Petitioner argues that defense counsel’s
failure had no conceivable effect on the “all or nothing” strategy because counsel did take
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exception to two other lesser-included offense instructions and exceptions were taken after
closing arguments outside of the presence of the jury. Pet. Br. at 22–23. Further, exceptions were
taken after the jury had already been instructed. Tr. 435–54. The Court finds Petitioner’s
argument persuasive and Respondent appears to concede the first prong of the Strickland test as
it presents no argument on this issue in either its response to the habeas petition or in its response
to Petitioner’s objections. Defense counsel’s failure to preserve the issue for appeal had no
conceivable effect on its “all or nothing” strategy at that point in the trial and it could not have
been considered to be a sound trial strategy. See Davis, 341 F.3d at 1315–16 (“Under no readily
conceivable circumstance will a simple failure to preserve a claim—as opposed to a failure to
raise that claim in the first instance—have any bearing on a trial’s outcome.”). The issue was
taken up outside of the presence of the jury and had no bearing on the defense’s credibility with
the jury. Accordingly, Petitioner has satisfied the first prong of the Strickland test.
Next, the Court must ask, but for counsel’s deficient action, was it reasonably likely that
Petitioner would have prevailed on appeal had the issue been preserved. In Oregon, the courts
“review the refusal to instruct the jury on a lesser-included crime for errors of law. In doing so,
[they] review the evidence in the light most favorable to the establishment that would require
those instructions.” State v. Moses, 165 Or. App. 317, 318, 997 P.2d 251, 253, rev. den., 331 Or.
334, 23 P.3d 986 (2000) (internal quotations and citations omitted).
Under Oregon law, a crime is a lesser-included offense of another crime if the “elements
of the former are subsumed in the latter,” or “the facts alleged in the charging instrument
expressly include conduct that describes the elements of the lesser-included offense.” State v.
Cook, 163 Or. App. 578, 581, 989 P.2d 474 (1999). Petitioner does not argue that Menacing is
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subsumed in Attempted Murder. Instead, Petitioner asserts that the facts alleged in the charging
instrument and the evidence adduced at trial would have permitted the jury to convict Petitioner
of Menacing rather than Attempted Murder.
The two charges of Attempted Murder alleged that Petitioner “unlawfully and
intentionally attempt[ed] to cause the death of another human being.” Resp. Ex. 104 at 1–2; Or.
Rev. Stat. (“O.R.S.”) § 163.115(1)(a). Under Oregon law, a person commits the crime of
Menacing “if by word or conduct the person intentionally attempts to place another person in
fear of imminent serious physical injury.” O.R.S. § 163.190.
In Trotter, the Oregon Court of Appeals reiterated that “attempted murder with a firearm
includes . . . menacing as [a] lesser-included offense.” Trotter v. Santos, 212 Or. App. 473, 476,
157 P.3d 1233, 1235 (2007). The Trotter court explained that: “If a criminal defendant is charged
with attempted murder with a firearm, a jury may properly convict the defendant of either
attempted assault or menacing or both if the evidence establishes that the conduct charged as
attempted murder also constitutes those lesser included offenses.” Id. at 477, 147 P.3d at 1236.
The defendant in Trotter pointed a gun directly at a victim, “who grabbed the gun and pushed it
up as it went off.” Id. 475, 147 P.3d at 1235. The bullet missed the victim “but the shot left
powder burns on his neck.” Id. The court held that the failure to give the menacing instruction
was prejudicial to the petitioner because the facts of the case warranted the instruction and the
jury did not have a complete statement of the law upon which to render a proper verdict. Id. at
477–78, 147 P.3d at 1236; see also State v. Leckenby, 200 Or. App. 684, 691, 117 P.3d 273, 276
(2005) (holding that while the jury must consider and reject the offense charged before
considering the lesser offense, the jury “must still have before it the instruction on the lesser
offense if the evidence would support it”).
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Similarly, in Moses, the Oregon Court of Appeals held that it was error for the trial court
to refuse to give defendant’s requested lesser-included offense instruction where the “allegations
of the indictment include the necessary elements and defendant’s evidence support giving of a
lesser-included instruction.” 165 Or. App. at 323, 997 P.2d at 255. In Moses, the defendant fired
several shots into a van filled with six people, injuring one passenger. Id. at 319, 997 P.2d at 253.
The defendant was convicted, in relevant part, on one count of attempted aggravated murder and
first-degree assault. Id. at 252, 997 P.2d at 252. At issue was whether the trial court erred for
failing to give an instruction on reckless endangerment. The Moses court held that even though
the jury found that the defendant had acted intentionally, the trial court nonetheless erred in
failing to give an instruction on reckless endangerment:
[Defendant] asserts that he acted recklessly regarding all of the
shots fired. Although requested by defendant, the jury was never
permitted to evaluate whether defendant acted recklessly when he
fired the shots. The fact that he may have been found to have
intentionally fired the shots at the driver and in the direction of the
female passenger does not obviate that problem. Because the court
did not give the lesser-included instructions, the jury did not have a
complete statement of the law, and we are unable to determine
what the verdict would have been had the jury been properly
Id. at 256, 997 P.2d at 326; see also State v. Naylor, 291 Or. 191, 197–98, 629 P.2d 1308, 1311
(1981) (holding that the failure to give the requested instruction “resulted in the case being
submitted to the jury without a complete statement of the law” and the court was “unable to say
what the verdict would have been had the theory of the defense been properly presented to the
In this case, the defense’s central theory was that Petitioner intended only to scare the
victims. During opening statements, defense counsel began by saying “[l]et me tell you right off
the bat, this is not an Attempted Murder case. This is something less than attempted murder[.]”
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Tr. 50. Counsel went on to argue that given Petitioner’s proximity to the victims when he fired
the shots, if he intended to kill them then this would be a homicide case; “[b]ut his intent was to
scare them, and that’s what he told the police that night . . . I just wanted to scare them because
they insulted my girlfriend.” Tr. 53–54. Defense concluded by arguing that the “judge is going to
tell you that there’s more to consider than Attempted Murder and Assault. There’s lesser
included offenses, and that’s what [Petitioner] is guilty of, something less.” Tr. 54. At closing
argument, defense counsel reiterated that “[i]f it was intentional, it was intentional to scare.” Tr.
After reviewing the entire trial record, the Court finds that there is a substantial likelihood
that the Oregon Court of Appeals would have concluded that the allegations in the indictment
and Petitioner’s evidence adduced at trial supported giving the lesser-included instruction of
Menacing. The indictment concerning the Count 1 for Attempted Murder charges: “The
defendant, on or about August 24, 2005, in Clatsop County, State of Oregon, did unlawfully and
intentionally attempt to cause the death of another human being, to-wit Vincent Fritzie[.]” Resp.
Ex. 104 at 1. Multiple witnesses testified that at least one of the shots Petitioner fired was
directed into the ground. Tr. 116, 226. Further, there was conflicting evidence as to whether the
bullet that passed through Fritzie’s upper thigh was a direct shot or a ricochet that bounced off of
the ground. Tr. 106, 109, 115–16, 270–74. No expert testimony was given at trial on the issue of
ricochets, bullets went missing from the crime scene, and the location of the bullet holes in the
surrounding area was disputed. Tr. 197–200, 204, 272–73, 300. Similarly, an officer testifying as
a fact witness, not as an expert witness, stated that he “believed” that the mark on DeJoode’s
back was consistent with a bullet grazing him. Tr. 194. That same night, DeJoode had previously
been knocked to the ground by Petitioner’s punch and had jumped into bushes to avoid being
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shot. Tr. 88, 96, 214. In other words, evidence adduced at trial supported the contention that
Petitioner may have attempted only to scare the victims and an instruction on the lesser-included
offense of Menacing was warranted.
The Court finds that Trotter and Moses control here. In both cases the State argued that
the defendants acted with the intent to kill and the defendants contended that they acted with
different intents. Similarly, the allegations in the indictment and Petitioner’s evidence adduced at
trial supported giving the requested lesser-included offense instruction. In both cases the juries
found that the defendants had acted with the intent to kill, and in both instances the Oregon Court
of Appeals reversed, in part, because the trial courts failed to put lesser-included offenses before
the juries. Here too, the jury did not have a “complete statement of the law” and the Court must
“conclude that failure to request the instruction was prejudicial to petitioner.” Trotter, 212 Or.
App. at 478, 157 P.3d at 1236. Because the jury did not have a complete statement of the law, the
appellate courts would likely be “unable to say what the verdict would have been had the theory
of the defense been properly presented to the jury.” Moses, 165 Or. App. at 236, 997 P.2d at 256
(Quoting Naylor, 291 Or. at 197–98, 629 P.2d 1308).2 Accordingly, but for counsel’s deficient
action, it was substantially likely that Petitioner would have prevailed on appeal had the issue
The predictability of the outcome in this case is further complicated by the facts that the verdict
was not unanimous, it was ten to two, and evidence came to light at trial that at least some jurors
considered Petitioner’s silence and a newspaper article during deliberations. Tr. 464, 508–09,
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The Court declines to adopt the F&R. The Court also GRANTS Petitioner’s Amended
Writ of Habeas Corpus, VACATES his conviction and sentence as to Count 1 and Count 2 of the
Amended Indictment for Attempted Murder, and ORDERS Respondent to release him unless the
State of Oregon retries him within 60 days.
day of ______________________, 2017.
MARCO A. HERNÁNDEZ
United States District Judge
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