Lambert v. Hall

Filing 86

OPINION AND ORDER: The Amended Petition for Writ of Habeas Corpus (# 27 ) is denied. The Court does, however, issue a Certificate of Appealability as to Petitioner's argued claims identified as Grounds One, Two, and Three of his Amended Petition. Signed on 11/7/2018 by Judge Michael H. Simon. (joha)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CHRISTOPHER TERRELL LAMBERT,
Case No. 2:15-cv-00847-SI
Petitioner,
OPINION AND ORDER

v.
GUY HALL,
Respondent.
Kristina S. Hellman
Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
Ellen F. Rosenblum, Attorney General
Nicholas M. Kallstrom, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent

1 - OPINION AND ORDER

SIMON, District Judge.
Petitioner
U.S.C.

§

2254

brings

this

habeas

challenging

the

corpus

case

legality

pursuant

of

his

to

28

state-court

convictions for Attempted Murder, Assault,

and Unlawful Use of a

Firearm.

Amended

For

the

following

Writ of Habeas Corpus (#27)

reasons,

the

Petition

for

is denied.
BACKGROUND

On July 28,

2002,

Petitioner visited the Quest nightclub

in Portland where he became
McClure.

Bystanders

thereafter,
Petitioner
stomach,

separated

Petitioner
missed

involved in a

fired

McClure,

a

the

two

handgun

but

leg. All three survived,

men

but,

in McClure's

struck

Y'isha Rosbrough in the arm,

dispute with Hollis

Shontae

shortly
direction.

Bell

in

the

and Michael Newman in the

and McClure and two other witnesses to

the event identified Petitioner as the shooter.
Police

arrested

Petitioner

on August

11,

2002

and,

eight

days later, the Multnomah County Grand Jury indicted him on four
counts

of

Second

Degree,

Degree,
Firearm.

Attempted

and

one

eight

Murder,
count

counts

Respondent's

of
of

Exhibit

three

counts

Attempted
Unlawful
102.

Assault

Assault

Use

The

of

of

trial

a

in

the

Weapon
court

in

the
First

with

a

appointed

Richard Vogt to represent Petitioner.
Petitioner began to construct a false alibi,

prompting him

to recruit witnesses to provide perjured testimony. He contacted
Quadree

Bradley,

Jennifer

Napolitano,

and

Brandon

help him establish a misleading version of events.
Napolitano agreed to help him in this endeavor.
2 - OPINION AND ORDER

Jenkins

to

Bradley and

Petitioner
November 2002,

next

proceeded to

secure

different

lawyer.

he relieved Vogt of further representation,

In
and

hired Randy Richardson for a flat fee of $20,000. Represented by
new

counsel,

conference

Petitioner's

on

January

30,

case
2003

proceeded
with

to

Multnomah

a

settlement

County

Circuit

Court Judge Julie Frantz. During that settlement conference, the
prosecutor offered to settle the case if Petitioner would plead
guilty to various

charges

that

resulted

in a

sentence of

140

months, but the case did not settle.
Petitioner proceeded to a jury trial where he claimed that
he was not at the Quest nightclub at the time of the shooting,
and

that

the

State's

eyewitnesses

respective

identifications.

Napolitano,

both of whom testified that

Lush

nightclub

contrary to

at

the

the

time

The

were

of

State's evidence,

defense

the

mistaken
called

in

Bradley

Petitioner was

shooting

their

at

and

at the

Quest

and,

Petitioner was wearing blue

jeans, a white shirt, a white visor, and white shoes. 1
In

what

became

a

turning

point

at

testified that she had seen a friend of hers,

trial,

Napolitano

Samoyya Morrison,

on the night of the shooting outside the Quest nightclub,
spoken to her for a period of 10-15 minutes.
having

regular

contact with Morrison before

and

Napolitano denied
that

evening,

and

further denied that she had spoken with Morrison since the night
of the shooting. The State called Morrison as a rebuttal witness
who testified that,

contrary to Napolitano's testimony,

1

she had

The State's eyewitnesses testified that the shooter had been wearing a
light-colored shirt with dark stripes and black pants. Trial Transcript
( 2 / 2 5 / 0 3 ) , pp . 2 4 9 , 3 5 5 - 5 6 .

3 - OPINION AND ORDER

been

with

her

shooting,
outside
spoke

boyfriend

nowhere
of

the

near

at

Moses

Quest,

and

club.

She

also

Napolitano

with

Lake

and

had

on

had

never

testified
last

the

of

the

seen

Napolitano

she

frequently

that

seen

night

her

less

than

three

weeks before the trial.
The jury found Petitioner guilty of all charges. Sentencing
was

postponed,

Napolitano' s
Morrison.

however,

trial

testimony

Napolitano

Richardson,

as

because

told
he

the
was

police

so

contradictory

officers

she

to

police

that

her

that

of

talk

with
like

testimony

p.

2.

was

to

to

why

call him if anything

"told me to

wanted

this happened." 2 Respondent's Exhibit 117,
admitted

investigated

She ultimately

not

truthful.

She

claimed that after the shooting, Petitioner called her from jail
and sent her letters telling her what to say,
description
shooting.

of

clothing

Richardson

he

told

was

wearing

Napolitano

to

including a false

the

night

destroy

of

the

the

letters

because they might incriminate Petitioner.
According

to

Napolitano,

she

attended

a

meeting

held

by

Richardson at which Bradley and Petitioner's girlfriend, Rashida
Peterson, were present. Richardson went over the story they were
supposed

to

relate

and

showed

them

the

clothes

they were

to

describe Petitioner as wearing on the night of the shooting.

Id

at 17-19. Napolitano later told Richardson that she was hesitant
to testify falsely on Petitioner's behalf but was also fearful
of retaliation if she did not
2

lie because

Petitioner's

family

Evidence would show 152 telephone calls between Richardson and Napolitano.
CR 20-5, p. 65.

4 - OPINION AND ORDER

knew where she lived. Richardson encouraged Napolitano to adhere
to

the

fabricated

resulting

in

a

story

and

brief

even

sexual

began

to

see

relationship.

her

When

Napolitano

subsequently called Richardson to advise him that
intend

to

testify

falsely

on

Petitioner's

socially,

she did not

behalf,

Richardson

became agitated. He showed up at Napolitano's apartment fifteen
minutes

later,

consistently
Napolitano

and

with

offered

the

accepted

her

story

$300

money

he

from

and

if

she

Lambert

Richardson

would

had

in

testify

established.

exchange

for

her

false testimony.
According to Napolitano, in the aftermath of her testimony,
Richardson had been particularly concerned about the portion of
her

testimony

involving

Samoyya

Morrison

because

she

was

not

part of the false alibi. Richardson instructed Napolitano to get
in touch with Morrison and advise her not to answer her door so
that the State would be unable to serve her with a subpoena to
compel

her

appearance

at

trial.

Morrison

initially

ignored

authorities when they showed up at her home and knocked on her
door,

but

subpoena.

later

answered

As noted above,

the

door

and

was

served

with

a

Morrison appeared at trial and cast

significant doubt on Petitioner's alibi.
Authorities also interviewed Bradley after the trial,
also admitted to providing false
Petitioner

in

the

form

of

a

who

testimony provided to him by
letter

sent

through

Rashida

Peterson. Peterson was able to confirm Bradley's statements.
Police also interviewed Brandon Jenkins, whose car had been
hit by a bullet during the shooting.
5 - OPINION AND ORDER

He claimed Petitioner had

sent a letter to him,

also by way of a third party, asking that

he identify someone else as the shooter.

Jenkins did not do as

Petitioner asked, and instead kept the letter and provided it to
the authorities during the post-trial investigation.
Petitioner appeared for sentencing on April 17,

2003,

but

the trial judge informed the parties that sentencing would not
take place.

Richardson was not present in the courtroom at the

beginning of the hearing because he was being served elsewhere
in the courthouse with search warrants for his home, office, and
person

related

moved

to

to

Petitioner's

disqualify

criminal

Richardson

investigation

put

case.
as

As

a

result,

counsel

Richardson

and

the

because

State

the

new

in

the

Petitioner

conflicted position of co-conspirators. The prosecutor felt that
Petitioner needed to be represented by independent counsel,

but

Richardson disagreed. He advised the trial court that Petitioner
could

waive

any

Petitioner's

conflict

option

that

whether

to

might

exist,

proceed

and

with

that

it

Richardson

was
as

counsel.
Over

the

State's

objection,

the

trial

court

asked

Petitioner if he wished to have new counsel appointed to which
Petitioner replied,
CR 20-4,

p. 241.

"No,

I'm comfortable with Mr.

Richardson."

The trial judge appointed independent counsel

to consult with Petitioner, but allowed Richardson to remain as
counsel

of

applicable

record
rules.

until
Four

she
days

could more
later,

thoroughly

however,

the

study

trial

the

judge

removed Richardson from the case and ultimately appointed Lisa
Ludwig to represent Petitioner at sentencing.
6 - OPINION AND ORDER

On

December

indicted

12,

2003,

Richardson

pertaining

to

and

bribery,

the

Multnomah

Petitioner

perjury,

and

County

with

Grand

various

witness

Jury

charges

tampering.

While

those charges were pending,

sentencing regarding the Attempted

Murder

4,

took place on April

sentence

on

the

charges

2005.

arising

expressly

stated

that

she

misconduct

with

respect

to

from

would
the

The

judge,

the

not

shooting

consider

falsified

when imposing
at

Quest,

Petitioner's

evidence.

She

did,

however, state:
I find that the testimony and the exhibits
regarding defendant's role and conduct in
soliciting false testimony is reliable. This
is
clearly
reprehensible
behavior
that
cannot be tolerated by the Court, but the
justice system, or by the public. It demeans
our entire system. And it shows incredible
disrespect
and
arrogance,
and
perhaps
stupidity, as well, on the part of the
defendant, and anyone involved with him, in
attempting to subvert justice.
Sentencing Transcript

(4/5/2005),

p.

181.

She then proceeded to

sentence Petitioner to a sentence totaling 250 months.
Lisa

Ludwig

filed

Petitioner's sentencing,
based

upon:

(1)

a

Motion

for

New

Trial

shortly

after

claiming that a new trial was in order

"irregularity

insufficiency of the evidence.

in

the

proceedings,n

and

(2)

Ludwig argued that not only was

Richardson's conduct reprehensible, but he failed to convey the
State's plea offer to Petitioner such that he was the victim of
ineffective assistance of counsel. Respondent's Exhibit 166. The
trial court did not rule on the Motion which was deemed denied

7 - OPINION AND ORDER

55 days

after

its

filing

under Oregon's procedural

rules.

See

ORCP 64 ( F) ( 1) .
In May 2005,
to Bribe a
Commit

Petitioner entered a guilty plea to Conspiracy

Witness,

Perjury,

Bribing a Witness,

Solicitation

Tampering with Witnesses.
to 22 months in prison,
the

sentence

Richardson

As a

Commit

result,

Perjury,

Perjury

and

the court sentenced him

18 of which it imposed consecutively to

stemming

proceeded

to

Criminal Conspiracy to

from
trial

to

the

Attempted

where

he

was

Murder

trial.

acquitted

of

all

charges.
Petitioner took a
certain treatment

direct

records

trial

court's

P.3d

945

decision

rev.

(2009),

alleged that

should not have been

The Oregon Court of Appeals affirmed

Supreme Court denied review.
210

in which he

of his victims

admitted during his trial.
the

appeal

without

opinion,

and

the

Oregon

State v. Lambert, 228 Or. App. 756,
denied,

347

Or.

533,

225

P.3d

43

(2010).
Petitioner

next

for

filed

Umatilla County where,

post-conviction

relevant to

this

case,

he

relief

in

alleged that

Richardson failed to relay the State's plea offer to him.

The

PCR

not

Court

credible,
of fer

denied
and that

directly

Respondent's
decision,
court's

relief,

but

Judge

to

Exhibit
the

decision

finding
Frantz

him
159,

Oregon
without

the

p.

2.

Petitioner

issuing

a

conference.

appealed

affirmed

written

Lambert v.

was

State's plea

settlement

of Appeals

Oregon Supreme Court denied review.
8 - OPINION AND ORDER

Petitioner

communicated the

during

Court

that

the

opinion,

Coursey,

this
lower

and

the

2 65 Or.

App.

759,

337

P.3d 204

(2014),

rev.

denied,

356 Or.

689,

344

P.3d 1111 (2015).
Petitioner filed this 28 U.S.C.

§

2254 habeas corpus case

on May 18, 2015, and amended his Petition with the assistance of
appointed

counsel

on

April

22,

2016

to

state

the

following

claims:
1. Richardson rendered ineffective assistance when he
failed to inform Petitioner of the State's offer of a
plea bargain, and failed to counsel Petitioner about the
possibility of resolution of his case through plea
negotiations;
2. Petitioner was deprived of his right to conflict-free
representation where Richardson was motivated by his own
personal and financial self-interest;
3. Petitioner was denied the effective assistance of
counsel when he was represented by a trial attorney who
had an unwaivable conflict of interest, and was motivated
solely by his own personal and financial self-interest;
and
4. Appellate counsel was ineffective for failing to raise
on appeal the denial of Petitioner's Motion for New
Trial.
Amended Petition (#27).
Respondent
because:
One;

( 1)

(2)

Petitioner

asks the Court

the

Grounds
is

PCR Court
Two

unable

and
to

to deny relief on these claims

reasonably denied relief on Ground
Three

excuse

nevertheless lack merit; and

(3)

burden of proof as to Ground Four.

Ill

9 - OPINION AND ORDER

are
his

procedurally
default,

and

defaulted,
the

claims

Petitioner fails to sustain is

DISCUSSION

I.

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

(2) "based

on

an

Supreme

Court

unreasonable

of

the

United

determination

of

States;"
the

or

facts

in

light of the evidence presented in the State court proceeding."
28

U.S.C.

2254(d).

§

to.

clearly

A

state

established

court

decision

precedent

if

is

the

"contrary

state

court

applies a rule that contradicts the governing law set forth in
[the Supreme Court's]
set

of

facts

decision of

that

cases" or "if the state court confronts a
are

materially

[the Supreme]

indistinguishable

from

Court and nevertheless arrives

result different from [that] precedent." Williams v.

Taylor,

a

at

a

529

U.S. 362, 405-06 (2000).
Under
§

the

2254 ( d) ( 1) ,

a

state
from

court
[the

"unreasonable
federal

identifies

Supreme

habeas
the

Court's]

application"

court may grant

correct
decisions

governing
but

clause
relief
legal

of

"if the
principle

unreasonably

applies

that principle to the facts of the prisoner's case." Id at 413.
The

"unreasonable application"

decision

to

be

more

than

10 - OPINION AND ORDER

clause requires the state court

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
[the

that

Supreme]

the

state

Court's

court's

precedents.

decision conflicts with
It

goes

farther."

no

Harrington v. Richter, 562 U.S. 86, 102 (2011).

Twenty-eight U.S. C.
to "challenge the
attempt

to

show

substantial

2254 (d) ( 2)

§

substance of the
that

evidence

those
in

also allows a petitioner

state court's

findings

the

state

were

court

and

supported

not

findings

by

record."

Benedetti, 693 F.3d 1140, 1146 (9 th Cir. 2012).

Hibbler

v.

A federal habeas

court cannot overturn a state court decision on factual grounds
"unless

objectively

unreasonable

in

light

of

the

evidence

presented in the state-court proceeding." Miller-El v. Cockrell,
537 U.S. 322, 340 (2003). This is a "'daunting standard-one that
will be satisfied in relatively few cases,'
we

must

be

'particularly

colleagues.'" Hernandez v.
2014)

Taylor v.

(quoting

deferential

Holland,
Maddox,

especially because

to

our

857

( 9th Cir.

1000

( 9 th Cir.

750 F.3d 843,
366

F. 3d 992,

state-court

2004)).
II .

Ground One

Petitioner
constitutionally
State's

plea

negotiations.

claims

first

ineffective
offer,

As

an

or

when

11 - OPINION AND ORDER

he

otherwise

initial

Richardson

that

matter,

failed
counsel
the

to
him

Court

was

convey

the

on

plea

notes

that

Petitioner
support
Such
§

attempts

his

to

rely

claim which he

evidence

is

not

on

a

variety

of

new

never presented to

properly

considered

evidence

the

to

PCR Court.

here.

u.s.c.

28

2254 (d) (1); Cullen v. Pinholster, 563 U.S. 170, 182-83 (2011).

Accordingly,

this

Court

considers

only

the

evidence

that

was

properly at issue in Petitioner's PCR proceeding.
Because

no

Supreme

Court

precedent

is

that corresponds to the facts of this case,
general

two-part

test

established

by

directly

on

point

the court uses the

the

Supreme

Court

to

determine whether Petitioner received ineffective assistance of
counsel.
First,
below

Knowles

Mirzayance,

556

U.S.

111,

122-23

(2009).

Petitioner must show that his counsel's performance fell
an

objective

Washington,
in

v.

466 U.S.

evaluating

standard

of

668, 686-87

counsel's

reasonableness.

Strickland

v.

(1984). Due to the difficulties

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
whether

defense.

Petitioner

probability that,

The appropriate

can

but

for

show

"that

test

there

for
is

prejudice
a

is

reasonable

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

12 - OPINION AND ORDER

of

the

trial.

Id

at

696.

When

Strickland's general standard is combined with the standard of
review

governing

result

is

a

28

U.S.C.

2254

§

"doubly deferential

habeas

judicial

corpus

cases,

review."

the

Mirzayance,

556 U.S. at 122.
During the PCR proceeding,

Petitioner submitted two pieces

of evidence relevant to his Ground One claim. First,
offered his

own Affidavit previously filed

in

support

Motion for New Trial in which he claimed that "Mr.
never asked

[during the settlement conference]

the

sentence

bargain."

would

Respondent's

offered

Lisa

support

his

if

Exhibit

Ludwig's
Motion

be

I
166,

Affidavit

for

New

was
p.

which

Trial.

In

14.

In
had

her

Richardson

nor was I

interested

he

of his

or at any other

time if I was willing to make a plea bargain,
what

Petitioner

in

a

told
plea

addition,
also

he

used

Affidavit,

to

Ludwig

stated that her review of Richardson's file failed to show any
indication

that

he

conveyed

the

State's

plea

offer

to

Petitioner. Id at 11.
The

State

countered

by

offering

prosecutor in which she stated that,
with

these

improbable

types
that

of

settlement

petitioner

would

the

Affidavit

of

the

"based upon my experience

hearings,
have

it

been

seems

unaware

highly
of

the

possibility of settlement and its terms." Respondent's Exhibit
120,

pp.

offered

1-2.
a

Consistent with this Affidavit,

letter

from

Judge

13 - OPINION AND ORDER

Frantz

wherein

the
she

State also
stated

that

although

she

did

not

recall

the

particulars

of

Petitioner's

settlement conference,

she could outline her standard approach

to

cases

settling

criminal

that

she

decades." Respondent's Exhibit 174, p.
involved Judge

Frantz

had
1.

reviewing with a

"followed

for

two

Part of that approach
defendant

the possible

sentence if convicted at trial,

and then proceeding to "discuss

the

is

being

contemplated,

of

going

to

plea

defendant

proposal
can

that

weigh

the

risk

the

versus

trial

so

the

certainty of a plea proposal if approved by the senior DDA' s."
Id at 3.

Judge Frantz did state, however, that "[v]ery, very seldom,
but

perhaps

specifically
before

she

defendant.
the

a

couple

recall,"
had

an

Id at 4.

of

times

settlement
opportunity

in

cases

conferences
to

speak

Petitioner.

I

ended
directly

do

not

abruptly
with

a

Given the remainder of the record, however,

remote instances mentioned by Judge

included

which

Specifically,

Frantz would not have

although

he

stated

in

his

Affidavit seeking a new trial that Judge Frantz never conveyed
the particulars of the State's plea offer to him,

he did agree

that Judge Frantz had met personally with him and told him what
his maximum sentence would be if convicted at trial, and that a
plea deal would reduce his sentence.
p. 14.

14 - OPINION AND ORDER

Respondent's Exhibit 166,

The
finding

PCR
that

Respondent's

Court

rejected

Petitioner
Exhibit

159,

Petitioner's

"refused
p.

2.

to
The

accept

Ground
any

PCR Court

One
plea

also

claim,
offer."

made

the

following findings:
3.
Based on
[Petitioner's]
behavior in
this case and his subsequent convictions, it
is clear that he has no respect for the
truth and is totally without credibility.

* * * * *
7.
This court also does not believe that
during the course of the judicial settlement
conferment, the judge didn't explain any
plea off er or the process of an offer to
[Petitioner] . [Petitioner] raised this issue
in [his] motion for a new trial and the
motion was
denied and could have been
appealed.
8.
R.
Richardson's
trial
performance
(disregarding the use of perjury for a
moment) was more than adequate.
9.
Lambert comes to this court as a coconspirator of Richardson. Before retaining
Richardson, Lambert had already arranged for
three witnesses to lie. Richardson clearly
had an ethical and legal obligation to
refuse to use the defense,
but Lambert
didn't care about any of that. He cannot now
complain about the course of conduct he
initiated, paid for and participated in.
There is no evidence or even claim that he
would have abandoned the defense or that he
regrets the conspiracy--only that he regrets
losing.
Respondent's Exhibit 159, pp. 2-3.
Petitioner states that he was not with Richardson at the
time that the State made its plea offer, and the evidence showed

15 - OPINION AND ORDER

that

nothing

in

Richardson's

file

indicated

notes

that

Richardson communicated the plea offer to his client. Petitioner
argues that there was no evidence in the record to support the
PCR

Court's

factual

determination

that

Judge

Frantz

actually

communicated the State's plea offer to him, 3 thus he believes the
PCR

Court's

factual

finding

on

this

point

amounts

to

mere

speculation.
Petitioner presented the plea offer issue to the PCR Court
for a determination,

thus placing that court in the position of

having to render a decision based upon a rather scant record of
something that might,

or might not have,

The

that

PCR

Court

credibility,
therefore
find

thereby

left

any

found

Petitioner

negating

only with the

specific

was

completely

lacking

Petitioner's

Affidavit.

It

fact

notation

been orally conveyed.

in

that

Ludgwig was

Richardson's

files

was

unable

to

that

he

communicated the plea of fer to Petitioner.

The absence of that

information

did

never

plea of fer

with

establish that
Petitioner,

Richardson

nor did it

not

discussed

the

speak directly to

whether Judge Frantz conveyed the plea offer to Petitioner when
3

Petitioner also asserts that the PCR Court erroneously stated that
Petitioner could have appealed the issue on direct review because the issue
pertained to ineffective assistance of counsel, something that can only be
raised during a PCR proceeding in Oregon's courts. It is not appropriate for
this Court to second-guess the PCR Court's ruling on this state-law
procedural issue. See 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."). In any event,
the resolution of Petitioner's Ground One claim does not depend on whether
the PCR Court correctly interpreted Oregon law concerning the appealability
of the denial of Petitioner's Motion for New Trial.

16 - OPINION AND ORDER

she met with him personally.

Indeed, given Judge Frantz's letter

and the prosecutor's Affidavit, there was evidence in the record
from which the PCR Court could make a reasonable factual finding
that Judge Frantz conveyed the State's plea offer of 140 months
directly to Petitioner.

Certainly,

Petitioner has not presented

clear and convincing evidence to the contrary to overcome this
factual finding.

See 28

U.S.C.

2254 (e) (1).

§

Consequently,

even

if Richardson failed to communicate the plea deal to his client,
such an omission did not result in prejudice to Petitioner.
Petitioner fails to establish prejudice for another reason,
as

well.

findings

Assuming

he

could

regarding his

overcome

lack of

the

PCR

Court's

credibility and Judge

factual
Frantz' s

communication of the plea offer, he has not overcome the finding
that he was not prepared to accept a plea deal (let alone a 140month plea deal) .

Even

prior to sentencing),
sentence but
regarding
Respondent's

after the

was

willing to

surrounding

events

Exhibits

(but

the State offered Petitioner a 120-month

only if he

the

jury had convicted him

175

& 176,

p.

off er his

Attempted

Murder.

Petitioner,

the
2.

cooperation

however,

flatly refused to offer his cooperation as to the incident.

Id.

Respondent's Exhibit 176, p. 2. Even in his Motion for New Trial
predicated upon the alleged failure to communicate a plea offer,
Petitioner

stated

only

that

he

would

have

"considered"

the

State's plea offer had it been conveyed, not that he would have

17 - OPINION AND ORDER

accepted it.
reasons,

the

contrary

Respondent's Exhibit 166,
PCR

to,

Court's

nor

an

established federal

denial

of

unreasonable

law.

p. 14.
this

For all of these
claim

is
of

application

neither
clearly

The decision also did not

involve an

unreasonable determination of the facts in light of the evidence
presented.
III. Grounds Two and Three

As

Grounds

Two

and Three,

Petitioner

argues

that

he

was

denied his right to conflict-free representation. The Court must
first

resolve

whether

Petitioner

can

overcome

his

adequately preserve Grounds Two and Three in the
through

a

showing

parties

agree

of

that

cause

the

and

Court

prejudice.

is

developed in the PCR proceeding,

not

In

limited

failure

to

state courts

doing
to

so,

the

the

record

thus the Court also considers

all of Petitioner's Exhibits, most of which are newly developed.
A.

Exhaustion and Martinez

A petitioner seeking habeas relief must exhaust his claims
by fairly presenting them to the state's highest court,
through

a

direct

appeal

or

collateral

proceedings,

either

before

a

federal court will consider the merits of habeas corpus claims
pursuant to 28 U.S.C.

§ 2254.

Rose v.

Lundy,

455 U.S.

509,

519

( 1982) . 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. Edwards

18 - OPINION AND ORDER

v.

Carpenter,

529 U.S.

U.S. 722, 750

446,

(2000); Coleman v.

451

Thompson,

501

(1991).

Petitioner

concedes

that

Grounds

Two

and

Three

are

procedurally defaulted because he failed to fairly present them
to Oregon's state courts during his PCR proceedings. He argues,
however,
the

that his PCR attorney was ineffective for not raising

claims

such

that

he

can

excuse

his

default

by way

of

a

showing of cause and prejudice pursuant to Martinez v. Ryan, 566
U.S. 1, 4 (2012).
1.

Standards

Traditionally,
used to
default.
the

establish

the performance of PCR counsel could not be
cause

Coleman v.

Thompson,

constitutionally

constitutes
( 1987)

cause);

(there

is

no

and prejudice
501 U.S.

ineffective

Pennsylvania

excuse

722,

a

753-54

Finley,

right

to

procedural
(1991)

assistance

v.

constitutional

to

of

(only

counsel

U.S.

551,

556

counsel

in a

PCR

481

proceeding). However, in Martinez v. Ryan, 566 U.S. 1, 4 (2012),
the

Supreme

Court

found

"it .

necessary

to

modify

the

unqualified statement in Coleman that an attorney's ignorance or
inadvertence in a postconviction proceeding does not qualify as
cause to excuse a procedural default."
"Inadequate assistance of counsel
proceedings

may

establish

cause

at
for

Id at

8.

It concluded,

initial-review collateral
a

prisoner's

procedural

default of a claim of ineffective assistance at trial." Id.

19 - OPINION AND ORDER

In order to establish cause to excuse his default pursuant
to Martinez,

Petitioner must show that his underlying claim of

ineffective assistance of trial counsel is

substantial insofar

as it has "some merit." He must also demonstrate that his PCR
attorney was

ineffective under the

4 66 U.S.

standards

of

Strickland v.

( 1984)

for failing to raise the claim.

"[T]o fulfill this requirement,

a petitioner must not only show

Washington,

that

PCR

counsel

prejudiced

668

performed

petitioner,

probability that,

deficiently,

i.e.,

that

but

there

also

was

that

this

a

reasonable

absent the deficient performance,

the result

of the post-conviction proceedings would have been different."
Runningeagle

v.

Ryan,

(quotation

omitted).

necessarily

require

reasonable

825

Such

probability

the

970,

F.3d

finding,

a

Court

to

that

the

( 9th

982

conclude

of

Cir.

course,

that

2017)
would

there

is

a

ineffective

trial-level

assistance claim would have succeeded had it been raised. Id.
2.

Analysis

To evaluate Petitioner's cause and prejudice argument,
Court
raised
Sixth

looks

to

the

in Grounds
Amendment

representation.

viability of
Two and Three

carries
Wheat v.

with

the

attorney

conflict

of the Amended
it

a

United States,

right

to

486 U.S.

the

claims

Petition.

The

conflict-free
153

(1988).

In

order to establish a Sixth Amendment violation, a petitioner who
raised no objection at trial must show that "an actual conflict

20 - OPINION AND ORDER

of interest adversely affected his lawyer's performance." Cuyler
v.

446 U.S.

Sullivan,

that
his

a

335,

348

(1980). "[A]

defendant who shows

conflict of interest actually affected the adequacy of

representation need not

demonstrate prejudice

in order to

obtain relief." Id at 349-50.
Petitioner contends that Richardson held a
his

former

Office,

employer,

the

Multnomah County

from which he had resigned while

investigation

into

questionable

grudge against

District Attorney's
suspended pending an

practices

and

tactics.

Petitioner's Exhibit 62. Petitioner asserts that Richardson, who
was

disbarred

by

the

time

PCR

counsel

filed

his

Amended

Petition, was absolutely fixated on besting his former employer
at trial,

leaving him motivated solely by his own self-interest

and causing him to hide the State's plea offer from Petitioner.
Petitioner reasons that where an actual,
interest

existed

between

Richardson

unwaivable conflict of

and

him,

PCR

counsel

was

obliged to present the issue to the PCR Court.
The

first

presumed

Sullivan's

conflict

between

instances
present
162,

168

problem

an

involving

in

presumption

of

the

Petitioner's

prejudice

in

attorney

and

multiple

Petitioner's

(2002),

with

case.

the
his

argument

presence
client

representation,
In Mickens

v.

of
is

a

21 - OPINION AND ORDER

"is

justified

an

that
actual

limited

situation

Taylor,

Supreme Court determined that

prejudice

is

535

to
not

U.S.

Sullivan's

because

joint

representation
and

because

defendants

of conflicting interests

counsel's

conflicting

is

inherently suspect,

obligation

is

to

multiple

. make it difficult to measure the precise harm

.

arising from counsel's errors." 535 U.S. at 168.
The

Ninth

emphasized
actively

Circuit

that

recognized

"[t]he

a

showing

required

Sullivan

represented

that

conflicting

interests,

Court

Mickens

that

counsel

which

did

not

support the expansive application to other sorts of conflicts or
ethical violations, such as conflicts between a client's welfare
and counsel's financial interests." United States v. Wal ter-Eze,
869

F.3d

stated

891

(2017)

that

the

(internal

quotation

Court

"Mickens

omitted).

specifically

It

and

further

explicitly

concluded that Sullivan was limited to joint representation" and
that

anything

else

amounted

to

an

open

question.

Earp

v.

Ornoski, 431 F.3d 1158, 1184 (9 th Cir. 2005).

Similarly,

Oregon law has not extended Sullivan beyond the

scope of joint representation.
327,

330

Al though

(1988); Clark v.
Petitioner

See Datta v.

Oregon,

directs

this

Keeney,

267 Or. App.
Court

to

544,

cases

90 Or. App.
550

(2014).

that

predate

Mickens, do not directly discuss Sullivan, or are from judicial

districts that are not binding on this court or Oregon's state
courts,
law

was

they are not persuasive to show that this area of the
so

well

established

in

Plaintiff's

favor

that

PCR

counsel was obligated to raise a Sullivan claim in state court.

22 - OPINION AND ORDER

See

Sophanthavong

2004)

v.

Palmateer,

378

F.3d

859,

870

(9th

Cir.

("Strickland does not mandate prescience, only objectively

reasonable advice under prevailing professional norms.").
Putting aside the
claim

that

Richardson

limited scope of

Sullivan,

was

a

motivated

by

Petitioner's

blinding

desire

to

prevail against his former employer at trial no matter the cost
is

belied

including
settled
prior

by

three

with

to

the

record.

Respondent

involving

the

serious

Multnomah

Petitioner's

County

trial.

identifies

felonies,
District

Respondent's

seven

that

Richardson

Attorney's
Exhibit

cases,

Office

178.

These

dispositions suggest Petitioner's decision to forego a plea was
not based upon any obstinate refusal to enter a guilty plea on
Richardson's part.

While

Petitioner correctly asserts that the

record does not contain all of the particulars of these cases,
the fact that Richardson settled all of them with the Multnomah
County District Attorney's Office belies Petitioner's assertion
that Richardson was motivated only by his own desire to prevail
in cases

involving his

former employer by refusing to settle,

taking the cases to trial irrespective of his client's interest,
and using any means necessary to prevail.
Even

if

Petitioner

could

prove

that

Richardson's

own

personal and overriding interest was to proceed to trial without
advising

Petitioner of

approach

does

not

the

appear

23 - OPINION AND ORDER

State's
to

140-month plea offer,

conflict

with

Petitioner's

this
own

desires.

As the PCR Court found in this case,

Petitioner "had

already decided his defense and had arranged the witnesses
the

time

he

retained

[Petitioner's]
request,
he

and

witnesses

were

"Richardson

going

to

lie

knew

at

that

by
the

[Petitioner's]

Petitioner "clearly never attempted to change the plan

11

his

indicated
crimes.

Richardson,

11

attorney

a

willingness

Respondent's

fabricated

had

his

own

agreed
to

admit

Exhibit

alibi

to[,]

159,

before

he

and

11

his

Petitioner

participation

never

in

his

Where

Petitioner

retained

p.

Richardson,

2.

ever

Richardson's purported desire to prevail at trial by any means
necessary was consistent with Petitioner's own approach to the
case.
There is further evidence of Petitioner's unwillingness to
accept a plea offer from the State.
trial, Petitioner:

After he was convicted at

(1) rebuffed the State's 120-month plea offer

because he was unwilling to cooperate with the its investigation
pertaining

to

the

Quest

would not be willing to
months

for

all

shooting;
settle

convictions,

witness tampering.

for

and

that

he

any sentence exceeding

90

including

(2) expressed

those

Respondent's Exhibits 175

&

associated
176.

with

Given that

Petitioner was unwilling to settle for a 120-month sentence in
the wake of his conviction,
have

accepted

a

he cannot establish that he would

140-month offer prior

to

trial

that

include a resolution of the witness tampering charges.

24 - OPINION AND ORDER

did

not

PCR counsel
not

to

raise

predicated

had a

variety of

strategically

an ineffective assistance

on

a

conflict

Richardson. As a result,
below an objective

of

interest

sound

of trial
between

reasons

counsel

claim

Petitioner

and

PCR counsel's performance did not fall

standard of reasonableness,

thus

Petitioner

fails to establish cause and prejudice to excuse his default.

IV.

Ground Four
Finally,

ineffective

Petitioner
for

failing

Motion for New Trial.
his

briefing

proof.

and,

See Silva v.

(Petitioner

bears

alleges
to

appeal

appellate
denial

the

counsel

Petitioner's

of

Petitioner has not argued this

therefore,

Woodford,
the

that

burden

has

not

sustained

279 F.3d 825,
of

proving

835

his

his

claim in
burden

(9th Cir.

claims) .

Petitioner had briefed the merits of this claim,

was

of

2002)

Even

if

the court has

examined it based upon the existing record and determined that
it does not entitle him to relief.

Ill
Ill
Ill
Ill
Ill
Ill
Ill
Ill
25 - OPINION AND ORDER

CONCLUSION

For the reasons identified above,
Writ of Habeas Corpus

(#27)

is denied.

the Amended Petition for
The Court does,

however,

issue a Certificate of Appealabili ty as to Petitioner's argued
claims identified as Grounds One, Two,

and Three of his Amended

Petition.
IT IS SO ORDERED.
DATED this

1 r't---

day of November, 2018.

Mic ael H. Simon
United States District Judge

26 - OPINION AND ORDER