Brown v. Premo

Filing 39

OPINION AND ORDER. Signed on 10/02/2015 by Judge Malcolm F. Marsh. (pvh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MICHAEL W. BROWN
Petitioner,

v.
JEFF PREMO
Respondent.
KRISTINA HELLMAN
Assistant Federal Public Defender
101 S.W. Main St., Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
ELLEN ROSENBLUM
Attorney General
ANDREW M. HALLMAN
NICK M KALLSTROM
Assistant Attorneys General
Department of Justice
1162 Court Street N.E.
Salem, Oregon 97301-4096
Attorneys for Respondent

1 - OPINION AND ORDER

Case No. 6:14-cv-00980-MA
OPINION AND ORDER

MARSH, Judge
Petitioner, an inmate at the Oregon State Penitentiary, brings
this habeas corpus proceeding pursuant to 28 U.S.C.

§

2254. For the

reasons set forth below, petitioner's habeas petition is DENIED.
FACTS AND PROCEDURAL HISTORY

Petitioner pleaded guilty to sexually abusing his twelve-yearold stepdaughter. Resp.

Ex.

105 at 4.

In May 2009,

the victim's

grandmother filed a complaint with the police after discovering a
sexually explicit online chat conversation between the victim and
petitioner.

Resp.

Ex.

112

at

2-3.

The

victim's

grandmother

previously had observed the victim sitting on petitioner's lap on
several occasions. Resp. Ex. 105 at 5.
In the chat conversation, petitioner appears to ask the victim
to send him nude pictures of herself and to engage her in cyber
sex.

Resp.

Exs.

112

at

3

& 133.

When

petitioner about the chat conversations,

the

police

questioned

he admitted to having

several other conversations of a similar nature with the victim.
Id.

at

10.

Separately,

the victim admitted to having a

sexual

relationship with petitioner when questioned by the police. Id. at
14.
In connection with their investigation, the police questioned
two women at Harvest House,

a

temporary housing shelter where

petitioner and the victim's mother lived for a period of time. The
manager

of

Harvest House,

2 - OPINION AND ORDER

Laura

Dittman and another woman had

witnessed the victim straddling petitioner in a sexualized manner.
Resp. Ex. 105 at 5-6; Resp. Ex. 144.
Following a grand jury indictment, petitioner pleaded guilty
to charges of Sexual Abuse in the First Degree (four counts), Rape
in the Second Degree
Degree

(one count).

(three counts),

Resp.

Exs.

102,

and Sodomy in the
104 & 105.

Second

The trial court

sentenced petitioner to a 90-month sentence. Resp. Ex. 105 at 14.
After forgoing a direct appeal, petitioner filed a petition
for post-conviction relief, which the post-conviction relief (PCR)
court denied.

Resp.

Exs.

107

& 151 at 24.

Appeals affirmed without opinion,
denied review. Brown v. Premo,

The Oregon Court of

and the Oregon Supreme Court

306 P.3d 798

(Or. Ct. App. 2013),

rev. denied, 315 P.3d 420 (Or.).

DISCUSSION
I.

Procedural Default (Grounds One and Four)
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).

petitioner

A federal

does

not

claim is procedurally defaulted if the

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.

O'Sullivan v.

Boerckel,

526 U.S.

838,

845,

848

(1999); Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). Habeas
3 - OPINION AND ORDER

review of procedurally defaulted claims

is

precluded absent

a

showing of cause and prejudice, or that failure to consider the
federal claims will result in a fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
A.

Ground One

In petitioner's

amended petition,

petitioner alleges

that

trial counsel was ineffective for failing to "properly litigate
pretrial motions regarding use of evidence at trial" of victim's
past false rape accusations under Oregon evidentiary Rule 608, the
Oregon Cons ti tut ion,

and

the

amend. VI; OR. CONST. art. I,

§

Federal

Constitution.

U.S.

CONST.

11; OR. R. Evrn. 608 ("Rule 608"); See

Pet.'s Amended Petition (ECF No. 27), p. 3. Respondent argues that
this claim is procedurally defaulted because it was not fairly
presented to the Oregon state courts and cannot now be raised to
Oregon's highest court. Respondent is correct.'
A careful review of the record demonstrates that petitioner
did not argue that trial counsel was ineffective for failing to
seek

admission

of

the

evidence

of

victim's

past

false

rape

accusations under OEC 608, the Oregon Constitution or the Federal
Constitution. See Gulbrandson v. Ryan, 738 F.3d 976, 992 (9th Cir.
2013)

(noting

it

is

well-settled

that

discrete

claims

of

ineffective assistance of counsel must be exhausted separately);
see also Poyson v.

Ryan,

743 F.3d 1185,

1202

(9th Cir.

Petitioner does not challenge respondent's argument.
4 - OPINION AND ORDER

2013);

Moorman v. Schriro, 426 F.3d 1044, 1056 (9th Cir. 2005); see Resp.

Exs. 106, 154 & 156.
When seeking post-conviction relief, petitioner presented this
claim to the state court under Oregon evidentiary Rule 412 only.
Resp. Exs. 106 & 107. Moreover, on appeal from the denial of postconviction relief,

petitioner again presented this claim to the

Oregon Court of Appeals and the Oregon Supreme Court on state law
grounds only.

Thus,

Ground One is not fairly presented because

petitioner has not provided the state courts with an opportunity to
consider and resolve his current federal claim. Coleman,501 U.S. at
732. Because the time for presenting this claim has passed, Ground
One is procedurally defaulted. See OR. REV. STAT.
REV. STAT.
B.

§

§

138.550(3); OR.

138, 650,

Ground Four

Petitioner alleges in Ground Four that his conviction violates
the

Fourteenth

and

Eighth

Amendments

because

he

is

"actually

innocent." Petitioner fails to sustain his burden on this claim.
Petitioner did not address ground four in his supporting brief. See
Pet.'s Brief in Support (ECF No. 31). In an application for habeas
relief,

petitioner

Pinholster,

carries

131 S.Ct.

1388,

the

burden

1398

(2011).

of

proof.

Cullen

v.

The court has reviewed

petitioner's claim of actual innocence and is satisfied that he is
not

entitled

petitioner has

to

relief

failed to

5 - OPINION AND ORDER

on

Ground

Four,

Accordingly,

because

sustain his burden of proving habeas

relief is warranted on Ground Four, habeas relief is denied on this
claim. Id.; Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004).
II.

Relief on the Merits
In his

remaining exhausted claims,

petitioner argues that

trial counsel rendered deficient performance because he did not
argue a motion for admitting evidence of the victim's past sexual
history and adequately investigate evidence from Harvest House,
resulting in prejudice to petitioner by his entering an involuntary
guilty plea. Respondent moves the court to deny habeas relief on
the basis that the PCR court's rejection of petitioner's claim is
neither contrary to, nor an unreasonable application of Strickland.
Respondent is correct.
A.

Standards

A petition for writ of habeas 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

to,

or

involved

an

unreasonable

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.
(2);

Harrington v.

Richter,

562 U.S.

86,

100

§

2254 (d) ( 1)

(2011).

&

Petitioner

bears the burden of proof. Cullen, 131 S.Ct. at 1398.
A claim of ineffective assistance of counsel requires

the

petitioner to prove that counsel's performance was deficient and
6 - OPINION AND ORDER

that there is a

reasonable probability that,

but for

counsel's

errors,

the result of the proceeding would have been different.

Bell v.

Cone,

535 U.S.

685,

695

(2002);

Williams v.

Taylor,

529

U.S. 362, 390-91 (2000); Strickland, 466 U.S. 668, 687, 694 (1984).
Counsel is "strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of reasonable
professional judgment." Cullen, 131 S.Ct. at 1403. When reviewing
a state prisoner's habeas claim of ineffective assistance, federal
courts must apply a doubly deferential standard of review taking
into account the strong presumption of competence under Strickland,
and the deferential standard of review under 28 U.S.C. § 2254 (d).
Burt v. Titlow, 134 S.Ct. 10, 13 (2013); Cullen, 131 S.Ct. at 1403.
Strickland applies to ineffective assistance claims arising
out of the plea process. Hill v. Lockhart, 474 U.S. 52, 58 (1985).
To show deficient performance, a petitioner must establish that his
counsel's

representation

was

outside

the

wide

range

of

professionally competent assistance. Strickland, 466 U.S. at 690.
In

order

to

petitioner

establish

must

show

prejudice
a

in

reasonable

the

guilty

probability

plea
that,

context,
but

for

counsel's errors, he would not have pleaded guilty and would have
insisted on going to trial.

Hibbler v. Benedetti,

693 F.3d 1140,

1150 (9th Cir. 2012); Doe v. Woodford, 508 F.3d 563, 568 (9th Cir.
2007); Hill,

474 U.S. at 59.

7 - OPINION AND ORDER

Because "plea bargains are the result of complex negotiations
suffused with uncertainty, and defense attorneys must make careful
strategic choices in balancing opportunities and risks," and strict
adherence to the deferential Strickland standard is "all the more
essential when reviewing the choices an attorney made at the plea
bargain stage."

Premo v. Moore, 562 U.S.

115, 124-125 (2011).

B. Relevant Facts

On April 5, 2010, trial counsel Eric Hansen filed a Motion and
Order to Admit Evidence Under OEC 412.

Resp.

Ex.

135. Counsel's

motion included a written offer of proof detailing the evidence of
victim's past sexual behavior, including past accusations of rape
and victim's sexually explicit online chat conversations with other
individuals.

Resp.

Ex.

136. The State filed a response brief on

June 9, 2010. Resp. Ex. 138. At the time scheduled for the motion,
the trial judge met with counsel and the prosecutor in his chambers
to discuss the merits of the motion.

Resp.

Ex.

143 at 3,

'IT

7.

Counsel advised petitioner that the trial judge strongly indicated
in the chambers meeting, that he would not grant petitioner's OEC
412 motion. Id. Upon counsel's advice, petitioner decided to enter
a guilty plea. Resp. Ex. 104.
Petitioner pleaded guilty pursuant to a plea petition which
provided:
I wish to plead GUILTY to the charge(s) set forth below.
I told my attorney all the facts and circumstances known
to me about the charge(s) against me and I believe that
my attorney is fully informed on all such matters. My
8 - OPINION AND ORDER

attorney has answered, to my satisfaction, all questions
I have concerning my case and this petition. My attorney
has counseled and advised me on the nature of each
charge; on any and all lesser included charges; and on
all possible defenses that I might have in this case.

* * * * *
I believe that my attorney did all that anyone could do
to counsel and assist me. I AM SATISFIED WITH THE ADVICE
AND HELP HE OR SHE HAS GIVEN ME.

* * * * *
I OFFER MY PLEA(S) VOLUNTARILY AND WITH FULL KNOWLEDGE
AND UNDERSTANDING OF ALL THE MATTERS SET FORTH IN THE
INDICTMENT AND IN THIS AFFIDAVIT AND IN THE ATTACHED
CERTIFICATE OF MY ATTORNEY.
Resp. Ex. 103 at pp. 1-2,

~~

3, 4, 17 & 20.

At the June 14, 2010 plea hearing, the trial court engaged in
a colloquy with petitioner to ensure he understood the terms of the
plea agreement. Resp. Ex. 104 at 1-3. Specifically, the trial court
discussed with petitioner

his

sentence of 90 months.

at 3. The trial court also confirmed

Id.

rights

and the

State's

proposed

that petitioner understood that he could still plead not guilty and
exercise his constitutional right to a jury trial.
pleaded guilty to all counts,

Id. Petitioner

and the trial court accepted his

guilty plea as knowing and voluntary.

Id. at 4-5.

On July 5, 2010, prior to his sentencing hearing, petitioner
sent a message to the trial court requesting to withdraw his guilty
plea because he felt he entered his plea under duress. Resp. Ex.
137.

At

the

July 12,

2010

sentencing hearing,

the

trial

court

confirmed that petitioner was not threatened from the State to
9 - OPINION AND ORDER

enter a guilty plea. Resp. Ex. 105 at 2. The trial court engaged in
another colloquy with petitioner to ensure he understood all of his
rights.

Id.

at

2-3.

Petitioner

reaffirmed his

guilty

plea

as

knowing and voluntary. Id. at 2.
However, in an affidavit to the PCR court, petitioner attested
that his plea was involuntary because counsel was ineffective:
I am more confident of my case after knowing that in
light of everything in Petitioner's Exhibits 1 through 38
that my attorney did not properly include everything in
the Rule 412 Amended Offer of Proof. The Offer of Proof
is insufficient and had this been better prepared, I
should not have entered Guilty Pleas and continued
through the 412 Hearing, which we never had.

* * * * *
My attorney should have had the 412 Hearing and I truly
believe the Motion would have been granted and my trial
would have been fair.
Resp. Ex. 150 at 2, 6-8.
In an affidavit to the PCR court, trial counsel provided an
entirely different view of his representation:
Petitioner alleges that I failed to obtain records from
Harvest
House/YCAP
showing dates
and
times
that
petitioner lived there and showing, supposedly, that such
dates and times are inconsistent with the dates and times
of the indictment. I do not recall petitioner stating
that the dates and times he lived at Harvest House were
different from the date range alleged in the indictment.

* * * * *
Petitioner complains that I did not have my investigator
talk to a Harvest House employee. As stated above, every
person that petitioner wanted us to interview I sent an
investigator to talk to. I cannot remember if every
person agreed to talk to my investigator. I can say with
absolute certainty that those whom the investigator did
10 - OPINION AND ORDER

speak with were not helpful and would not have been able
to
provide
testimony
that
would
have
assisted
petitioner's defense had he chosen to go to trial. I
reported this to petitioner.

* * * * *
Pe ti ti oner alleges that I failed to argue an OEC 412
motion. This is wrong. I drafted the motion and sent it
to the trial court and opposing counsel. When I appeared
in court to argue the motion, the judge asked counsel to
meet in his chambers. We discussed the motion and its
merits. After the meeting, the judge told me that he did
not think the proposed evidence - came within any of the
OEC 412 grounds for allowing such evidence to be
introduced at trial. The judge made clear to me that none
of the evidence would be allowed if petitioner chose to
go to trial. Petitioner and I discussed the plea offer
following the judge's remarks and I made clear to
petitioner that if I argued the OEC 412 motion, it
certainly would be denied, based on what the judge said
to me.
Resp. Ex. 143, pp. 3-4
In

support

of

at~~

his

2, 5, 7.

affidavit,

counsel

submitted

numerous

letters he sent to petitioner and others during the duration of his
representation

of

petitioner.

Resp.

correspondence,

counsel confirmed in a

Ex.

144.

Among

the

letter to petitioner on

August 7, 2009 that he was investigating Harvest House.

Id.

February

copy

18,

petitioner,

2010

letter

counsel

to

the

informed the

prosecutor,

with

prosecutor that

a

he asked

In a
to
the

investigator to interview Harvest House personnel. Id. In a March
10, 2010 letter to the trial judge, counsel requested the court's
assistance in procuring a copy of "notes taken by the Harvest House
by Harvest House employees," including the log book from Harvest
House,

"wherein

alleged

11 - OPINION AND ORDER

documentation

of

contact

between

[petitioner] and [victim] was recorded.u Id. To be sure, counsel
sent many letters to petitioner updating him on the status and
progress of his case.
At the PCR proceeding,

the PCR court rejected petitioner's

claims, found trial counsel credible, and concluded that petitioner
knowingly and voluntarily entered his guilty plea:
I don't find that there's anything about this case that
suggests Trial Counsel performed in an inadequate way.

* * * * *
[The] 412 motion, in my estimation, [was] obviously
doomed, because Judge Stone told [counsel] it was. And
it's apparent here that the attorney, Mr. Hansen,
appropriately advised Mr. Brown about his options.

* * * * *
Mr. Brown here
actually pled guilty twice, in the
span of about a month. So he took the deal to begin with,
is a pretty good deal under the
which I agree
circumstances.
[Petitioner] had an opportunity to discuss with Mr.
Hansen, experienced counsel, that he was running an
awfully big risk that he didn't necessarily take to hope
that a jury might believe him, and not believe her, and
especially where there may have been some testimony he
would have had to agree to that would have suggested
opportunity that he then would have had a hard time
explaining.
So I don't find there was any inadequate performance of
counsel. I think the Court made it very clear to Mr.
Brown the consequences of this plea.

* * * * *
And I certainly don't find any showing from the 412
motion that the kind of testimony that would [sic] was

12 - OPINION AND ORDER

suggested would have actually been received in trial, had
it gone forward.
Resp. Ex. 151 at 22-24. The PCR court also issued similar written
findings and held that "with regard to any issues not specifically
addressed above, the Court relies upon and adopts the facts and law
in Defendant's Trial Memorandum as the Court's findings of facts
and conclusions of law." Resp. Ex. 152 at 3. Specifically, State's
trial memorandum concluded that counsel was credible. Resp. Ex. 141
at 10-11.

C.

Analysis
1. Failure to Argue OEC 412 Motion (Ground Two)

To establish that trial counsel was ineffective for failing to
file a motion, petitioner must first demonstrate that the failure
to file a particular motion was outside the standard of attorney
competence. Strickland, 466 U.S. at 690; Hill,

474 U.S. at 58. In

order to show prejudice, petitioner must show that "had counsel so
moved, there is reasonable probability that the motion would have
been granted." Styers v.
2008)

(per

curiam).

Schriro,

Petitioner's

547 F.3d 1026,
argument

fails

1030
for

(9th Cir.
multiple

reasons.
First,

petitioner

has

failed

to

demonstrate

that

the

PCR

court's findings that counsel knew that the trial court would not
allow

evidence

of

the

victim's

past

sexual

behavior

and

appropriately advised petitioner of the trial court's intent were

13 - OPINION AND ORDER

unreasonable in light of the evidence presented. 28 U.S. C. § 2254 (d) (2) .
Second, given the PCR court's factual findings, petitioner has
not

established

that

counsel's

decision

to

cancel

the

motion

hearing and advise petitioner to enter a guilty plea fell below an
objective
counsel

standard of

and

the

reasonableness.

State

discussed

the

Indeed,
merits

the
of

trial

the

court,

motion

in

chambers after counsel filed his motion and provided an Of fer of
Proof. Resp. Exs. 135, 136 & 143 at 3. As the PCR court noted, the
trial court clearly indicated to counsel that the 412 motion was
"doomed." Resp. Exs. 143 at 3 & 151 at 22. In light of the evidence
presented and under the "doubly deferential" standard of review of
ineffective

assistance

of

counsel

claims,

the

PCR

court's

conclusion that counsel was not deficient is not unreasonable. See
Cullen,

131 S. Ct.

at 1403

(the strong presumption of competence

under Strickland and the deferential standard of review under 28

u.s.c.

§

2254(d)); 28

u.s.c.

§

2254(d) (1).

Third, petitioner cannot establish prejudice because: 1) he
has not shown the 412 motion would have succeeded, and 2) he has
not demonstrated that he would not have pleaded guilty and would
have insisted on going to trial. Although petitioner asserts that
a hearing would have allowed the trial court to hear from witnesses
and examine documents, he has failed to specify what evidence would
have been presented at the hearing that would have persuaded the
trial court to grant the motion. Hence, petitioner has not shown

14 - OPINION AND ORDER

that the PCR court's conclusion that the offered testimony would
not have met the requirements of Rule 412 is unreasonable. Styers,
547 F.3d at 1030.
Additionally,

in light of the strength of the State's case

against him, petitioner has failed to show that he would not have
pleaded guilty. As the PCR court indicated, petitioner would have
a difficult time explaining the State's evidence in the case. Resp.
Ex. 151 at 23. In addition to the victim's testimony that she and
petitioner had sexual intercourse several times, the State also had
the sexual online chat conversation between petitioner and the
victim. Resp. Exs. 112 at 4 & 133. Moreover, petitioner admitted
being

sexually

attracted

to

the

victim and

to

having

several

similar online conversations with the victim previously. Resp. Ex.
112 at 10. And, several witnesses were willing to testify to having
observed petitioner and the victim behaving in an inappropriate
manner suggestive of a sexual relationship. Resp. Exs. 112 at 4 &
143 at 2; see Rhoades v. Henry,
2010)

638 F.3d 1027, 1049-50 (9th Cir.

(" [i) n evaluating prejudice

ineffective assistance

claims based on a duty to investigate must be considered in light
of the strength of the government's case"). In light of a potential
25-year sentence if he had gone to trial, petitioner has not shown
that the PCR court's conclusion that petitioner was not prejudiced
is an unreasonable application of Strickland. Resp. Ex. 152 at 2.

15 - OPINION AND ORDER

Accordingly,

the

neither contrary to,

PCR

court's

rejECction

of

this

claim

is

nor an unreasonable application of clearly

established federal law. 28 U.S. C.

2254 (d) ( 1) .

§

2. Harvest House Records and Witnesses (Ground Three)

Trial counsel has a "duty to make reasonable investigations or
to make a reasonable decision that makes particular investigations
unnecessary."
minimum,
informed

4 66

Strickland,

U.S.

at

691.

Counsel

must,

"at

conduct a reasonable investigation enabling him to make
decisions

about

how

best

to

represent

his

client."

Hendricks v. Calderon, 70 F.3d 1032, 1035 (9th Cir. 1995).

"[W)here
investigate

the

or

alleged

discover

error

of

potentially

counsel

is

exculpatory

a

failure

evidence,

to
the

determination whether the error prejudiced the defendant by causing
him to plead guilty rather than go to trial will depend on the
likelihood that discovery of the evidence would have led counsel to
change his recommendation as to the plea." Hill,
"This

assessment,

in

turn,

prediction whether the

will

evidence

depend

in

474 U.S. at 59.

large

likely would have

part

on

a

changed the

outcome of a trial." Id.; Lambert v. Blodgett, 393 F.3d 943,

982

(9th Cir. 2004).
Petitioner contends that counsel's failure to investigate and
communicate
petitioner

with
asserts

him

led

that

investigate petitioner's
16 - OPINION AND ORDER

to

an

counsel

involuntary
was

residence at

plea.

deficient

for

Harvest

House,

Primarily,
failing

to

including

obtaining records of dates of residence and interviewing other
witnesses. Petitioner's argument fails for several reasons.
First,

as

the

PCR court

reasonable investigation:

found,

( 1)

trial

counsel conducted a

counsel sent his

investigator to

interview every person petitioner asked counsel to interview;

(2)

counsel's correspondence indicated that he asked his investigator
to

interview

records

Harvest

from

House

Harvest

employees

House,

and

including

a

requested
log

copies

book;

and

of
(3)

petitioner did not alert counsel to the fact that the dates and
times of his residence in the indictment were wrong. The PCR court
was not unreasonable in concluding that counsel was not deficient.
28 U.S.C.

2254(d) (1); see Crittendon v. Ayers, 624 F.3d 943, 967

§

(9th Cir. 2010)

(defense lawyer's duty to investigate and prepare

a

not

require

the

PCR court

defense

does

that

every conceivable

witness

be

failed

to

interviewed) .
Second,

as

concluded,

petitioner

identify any evidence demonstrating that the Harvest House records
or witness testimony would have changed the outcome of his trial.
Although petitioner offered the statement of Harvest House Manager
Laura Dittman,

who noted that she liked petitioner and enjoyed

their conversations, this evidence is not exculpatory. Resp.
148 at 3.

Ex.

Petitioner has failed to even speculate as to what an

investigation of the Harvest House records would have yielded. See
Weaver v.

Palmateer,

455 F. 3d 958, 971 (9th Cir. 2008)

17 - OPINION AND ORDER

("where a

petitioner cannot even make an unsubstantiated suggestion as to
what the results of further [fingerprint] testing would have been,
there is no basis on which a reviewing court can find prejudice.")
Accordingly,

petitioner

has

failed

to

demonstrate

he

was

prejudiced.
Third, petitioner has not established a reasonable probability
that

but

for

counsel's

alleged

insufficient

investigation,

petitioner would not have pleaded guilty and would have insisted on
going

to

trial.

In

this

case,

the

trial

record

reflects

petitioner participated in two thorough plea colloquies,

that

during

which he represented that he understood the plea petition, had not
been coerced, and had a clear understanding of what he was doing.
Resp. Exs. 104 at 2-4 & 105 at 2-4; see Blackledge v. Allison, 431
U.S.

63,

74

(1977)

(representations made by a defendant during a

plea hearing "carry a strong presumption of verity"). And, given
the overall strength of the State's case against petitioner, and
the threat of a 25-year sentence, the PCR court's conclusion that
petitioner entered a guilty plea knowingly and voluntarily is not
unreasonable.

Accordingly,

the

PCR court's

rejection of ground

three is neither contrary to, nor an unreasonable application of
clearly established federal law. 28 U.S.C.

§

2254 (d) (1).

CONCLUSION

Based on the foregoing, petitioner's Amended Petition For Writ
of Habeas Corpus

(ECF No.

18 - OPINION AND ORDER

27)

is DENIED, and this proceeding is

DISMISSED,

with

prejudice.

Because

petitioner

substantial showing of the denial of a

has

made

a

constitutional right,

a

certificate of appealability is DENIED. See 28 U.S.C.

not

§

2253(c) (2).

IT IS SO ORDERED.
DATED this _;]..___day of OCTOBER, 2015.

Malcolm F. Marsh
United States District Judge

19 - OPINION AND ORDER