Harbert v. Bowser

Filing 34

OPINION AND ORDER: The Amended Petition for Writ of Habeas Corpus 10 is denied. The Court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c) (2). (See 8-page opinion for more information.) Signed on 3/4/19 by Judge Marco A. Hernandez. (dsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
NATHANIEL HARBBERT,
Case No. 2:17-cv-01932-HZ
Petitioner,
OPINION AND ORDER

v.
T. BOWSER,
Respondent.
Thomas J. Hester
Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
Ellen F. Rosenblum, Attorney General
Samuel A. Kubernick, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent

1 - OPINION AND ORDER

HERNANDEZ, District Judge.
Petitioner brings
U.S.C.

§

convictions

2254

this

habeas

challenging

for

Rape

and

the

corpus

legality

Tampering

With

case

pursuant

of
a

his

to

28

state-court

Witness.

For

the

reasons that follow, the Petition for Writ of Habeas Corpus (#10)
is denied.
BACKGROUND

Following

a

bench

trial

in

Marion

County

in

2009,

the

Circuit Court found Petitioner guilty of two counts of Rape in
the Second Degree and one count of Tampering W1th a Witness. As a
result, the trial court sentenced him to 175 months in prison.
Petitioner took a direct appeal where his attorney filed a
Balfour

brief

consideration.
Appeals

that
1

did

not

Respondent's

affirmed

the

trial

raise

any

issues

Exhibit

109.

The

court's

decision

for

appellate

Oregon

Court

without

of

opinion.

State v. Harbert, 243 Or. App. 644, 257 P.3d 432 (2011).
Petitioner next filed for post-conviction relief

("PCR")

in

Umatilla County where the PCR court denied relief on all of his
claims.

Respondent's

Exhibit

142.

The Oregon Court

of Appeals

affirmed the PCR court's decision in a written opinion,

and the

Oregon Supreme Court denied review.

284 Or.

Harbert v.

Franke,

1 The Balfour procedure provides that counsel need not ethically withdraw when

faced with only frivolous issues.
Rather, the attorney may file Section A of
an appellant's brief containing a statement of the case sufficient to "apprise
the appellate court of the jurisdictional basis for the appeal."
State v.
Balfour, 311 Or. 434, 451, 814 P.2d 1069 (1991). The represented party may
then file a prose Section B segment of the brief containing any assignments
of error he wishes to raise. Id at 452. In this case, Petitioner did not
include any claims in his Section B.

2 - OPINION AND ORDER

App.

374,

393 P.3d 243,

rev.

denied,

361 Or.

800,

400 P.3d 324

(2017).
Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on
December

1,

2017,

Defender

to

and

the

represent

Petitioner argues

his

Court

him.

appointed the

With

the

Federal

assistance

Ground Two claim that

of

trial

Public

counsel,

counsel was

constitutionally ineffective when he failed to limit impeachment
evidence
argues

in conformance with applicable state laws.
that

the

claim

is

procedurally

Respondent

defaulted,

and

that

Petitioner is unable to excuse his default.
DISCUSSION
I.

Unargued Claims

In his original

Petition and Amended Petition,

Petitioner

raises five grounds for relief. With the assistance of appointed
counsel,

he chooses to argue his Ground Two claim pertaining to

trial counsel's alleged failure to limit impeachment evidence at
trial.

Petitioner does

not

argue

the merits

of

his

remaining

claims, nor does he address any of Respondent's arguments as to
why relief on these claims should be denied. As such, Petitioner
has

not

carried

unargued claims.
Cir. 2002)
II.

his

burden

See Silva v.

of

proof

Woodford,

with

respect

279 F.3d 825,

to

these

835

(9th

(Petitioner bears the burden of proving his claims).

Failure to Limit Impeachment Evidence

At issue in this case is Petitioner's contention that his
trial

attorney failed

impeachment
conduct.

by

prior

A petitioner

to

grasp the

convictions
seeking

3 - OPINION AND ORDER

evidentiary rules
and

habeas

specific
relief

must

limiting

incidents
exhaust

of
his

claims by fairly presenting them to the state's highest court,
either through a direct appeal or collateral proceedings, before
a federal court will consider the merits of habeas corpus claims
pursuant to 28 U.S.C.
(1982).

The

2254.

§

exhaustion

Rose v.

doctrine

Lundy,

is

455 U.S.

designed

519

avoid

''to

509,

the

unnecessary friction between the federal and state court systems
that would result if a lower federal court upset a state court
conviction

without

first

giving

the

state

court

system

an

opportunity to correct its own constitutional errors." Freiser v.
Rodriguez, 411 U.S. 475, 490 (1973).

Respondent argues that although Petitioner raised this claim
to the PCR court,

he failed to pursue it on appeal leaving it

procedurally defaulted.
claim

is

Petitioner does

procedurally defaulted,

but

not

he

disagree

contends

that

that

the

he

can

establish cause and prejudice to excuse the default pursuant to
Martinez v. Ryan, 566 U.S. 1 (2012).

Traditionally,
used

to

establish

cause

Coleman v.

default.
the

the performance of PCR counsel could not be

Thompson,

(1987)

cause);

(there

proceeding).

is

However,
necessary

"it .

Coleman

Pennsylvania

no

that

an

v.

constitutional
in
to

Martinez,

modify

attorney's

to

excuse

a

501 U.S. 722, 753-54

ineffective

constitutionally

constitutes

and prejudice

the

procedural
(1991)

(only

counsel

assistance

of

481

U.S.

551,

556

counsel

in a

PCR

Finley,

right

to

the

Supreme

unqualified

ignorance

or

Court

found

statement

inadvertence

in

in
a

postconviction proceeding does not qualify as cause to excuse a
procedural

default."

566 U.S.

4 - OPINION AND ORDER

at

8.

It

concluded,

"Inadequate

assistance
may

of

establish

counsel
cause

at

for

initial-review collateral proceedings
a

prisoner's

procedural

default

of

a

claim of ineffective assistance at trial." Id.
In order to establish cause to excuse his default pursuant
to Martinez, Petitioner must show first that his underlying claim
of ineffective assistance of trial counsel is substantial insofar
as it has "some merit." Next,
attorney was

ineffective

466 U.S.

Washington,

"[T]o fulfill this
that

PCR

under the standards

of

Strickland v.

(1984), for failing to raise the claim.

requirement, a petitioner must not only show

counsel

prejudiced

668

he must demonstrate that his PCR

performed

deficiently,
that

i.e.,

petitioner,

but

there

also

was

that

a

this

reasonable

probability that, absent the deficient performance, the result of
the

post-conviction

Runningeagle

v.

proceedings
825

Ryan,

would

F.3d

970,

have

been

982

different."

(9 th

Cir.

2017)

(quotation omitted). Such a finding, of course, would necessarily
require

the

probability

Court
that

to

the

conclude
trial-level

that

there

ineffective

is

a

reasonable

assistance

claim

would have succeeded had it been raised. Id.
In

this

case,

PCR

counsel

specifically

raised

the

claim

Petitioner argues here. In the PCR Petition, counsel provided:
(3) Trial counsel allowed petitioner to be
impeached as to specific incidents of conduct
regarding character, allowed petitioner to be
impeached on collateral issues via use of
extraneous evidence, and allowed introduction
of improper prior bad acts evidence, each
without
appropriate
objection.
This
impermissible evidence was extremely damaging
to petitioner's credibility, which was a
central
issue
in
the
case,
and
was
5 - OPINION AND ORDER

inadmissible under OEC 403 and 404, and 405.
This improperly admitted evidence severely
undercut the defense's theory that petitioner
was
truthfully
denying
the
allegations
underlying his criminal charges, and that the
victim was fabricating these allegations.
Pet.Exh.1, p. 259-272.
Respondent's Exhibit 113, p. 7.
Petitioner defaulted this claim when he failed to pursue it
on appeal and,
direct

instead,

pursued only an unrelated claim against
to

pertaining

counsel

appellate

jury

the

waiver.

Respondent's Exhibit 143. Martinez does not excuse a procedural
default that occurs at the PCR appellate level, only one where a
PCR attorney fails to present a claim at the initial-level PCR
proceeding. 566 U.S. at 8.
Recognizing

this,

Petitioner

claims

that

although

PCR

counsel raised the claim he argues here at the initial-level PCR
evidence

"the

proceeding,
developed."

Memo

in

Support

support

to

(#23),

claim

the

p. 20.

In

was

not

Martinez,

the

Supreme Court was concerned with developing a mechanism whereby a
court could excuse a failure to present a claim of ineffective
assistance of trial counsel at an initial-level PCR proceeding
because the failure
procedural

default.

to present such a
Nowhere

does

claim directly causes a

Martinez

instruct

district

courts to engage in a separate analysis of how strenuously PCR
counsel argued such a claim that counsel did,
therefore preserve.

See Martinez, 566 U.S.

in fact,

at 5,

12

raise and

(the proper

formulation of the issue is "whether a federal habeas court may
excuse a procedural default .
presented

in

state

court

6 - OPINION AND ORDER

due

. when the claim was not properly
to

an

attorney's

errors");

("To

present a claim of ineffective assistance at trial in accordance

then,

with the State's procedures,
effective

attorney.");

a

prisoner likely needs an

prisoner's

("A

inability

to

present

a

claim of trial error is of particular concern when the claim is
one of ineffective assistance of counsel.")

(bold added) .

PCR counsel presented the claim of ineffective assistance of
trial counsel at issue in this case during Petitioner's initiallevel PCR proceeding. This was all that Martinez required him to
do if for no other reason than there was no default at that level
to

excuse

under

presentation,

Nevertheless,

Martinez.

counsel

further

directed

beyond

the

the

PCR

court

claim's
to

the

specific portion of the record that pertained to the claim, and
also provided argument in support of the claim in Petitioner's
Trial Memorandum.

Respondent's Exhibit 114,

Petitioner believes

PCR counsel

pp.

10-11. Although

could have provided additional

argument and evidentiary development during the PCR proceeding,
Martinez does

not extend beyond the question of whether a

attorney failed
assistance
claim

at

of

to present

trial

issue,

a

counsel.

Petitioner

PCR

substantial claim of ineffective
Where

PCR

fails

to

counsel
excuse

procedural default from his PCR appeal,

presented the
his

subsequent

and the Court finds an

evidentiary hearing unwarranted.
CONCLUSION

For the reasons identified above,
Writ

of Habeas

Corpus

(#10)

is

the Amended Petition for

denied.

The Court

declines

to

issue a Certificate of Appealability on the basis that petitioner

7 - OPINION AND ORDER

has

not

made

a

substantial

showing

constitutional right pursuant to 28 U.S.C.
IT IS SO ORDERED.
DATED this

'9 ~day

of
§

the

denial

of

2253(c) (2).

µN/..u.(

of ~obruary, 2019.

~

8 - OPINION AND ORDER

o

Ma~ A. H~ nandez
United States District Judge

a