Jensen v. Premo
Filing
114
OPINION AND ORDER: Amended Petition for Writ of Habeas Corpus 53 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 15-page opinion for more information.) Signed on 2/21/2024 by Judge Adrienne Nelson. (dsg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JOEL JENSEN,
Petitioner,
v.
Case No. 6:16-cv-02049-AN
OPINION AND ORDER
JEFF PREMO,
Respondent.
Julie Pitt Vandiver
Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
Ellen F. Rosenblum, Attorney General
Nick M. Kallstrom, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent
1 – OPINION AND ORDER
NELSON, District Judge.
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the
legality of his Benton County criminal judgment dated February 20, 2009. For the reasons that
follow, the Amended Petition for Writ of Habeas Corpus (#53) is denied.
BACKGROUND
Petitioner was a family friend of a married couple, Tim Hardin and Deborah Davis, who
were 30 years senior to Petitioner. The three had met in 2001 and, over time, Petitioner came to
rely on Hardin and Davis for various forms of support. In June, 2007, Petitioner moved into the
Hardin-Davis home. One month later, on July 23, 2007, Davis disclosed to Hardin that she had
been having an affair with Petitioner since November 2006 when the two had taken a camping
trip together. Trial Transcript, p. 573. After this disclosure, the couple told Petitioner he needed
to move out of the home.
After moving out of the residence, Petitioner continued to telephone Hardin and Davis.
On August 5, 2007, he called, spoke with Davis, and told her he was thinking about committing
suicide. As a result, Davis took Petitioner to a local hospital where he stated that he did not really
intend to commit suicide, but could not understand why his relationship with Davis had to end.
Id at 373-74. Petitioner was particularly distraught over the breakup because he was socially
awkward and, despite being 28 years of age, had never had a girlfriend or kissed a woman prior
to his relationship with Davis. Id at 572. Jeffrey Sneddon, a licensed clinical social worker, met
with Petitioner, noticed that he had difficulty interpreting social cues, and wondered if he might
have Asperger’s Disorder. 1 Id at 375, 381.
1 Sneddon phrased this as a “rule-out of Asperger’s Disorder,” which means that the issue is
neither confirmed nor excluded, and remains a possible condition that requires further
exploration. See Respondent’s Exhibit 124, p. 4.
2 – OPINION AND ORDER
Two days later, Davis told Petitioner that she and Hardin would not be communicating
with him anymore. She did, however, agree to lend Petitioner a pickup truck for a date that she
had arranged for him with another woman later that night. The woman, however, cancelled the
date and Petitioner returned the truck to the Hardin-Davis home. Instead of leaving the keys in a
flowerpot outside as Davis had instructed, he came to the front door. Davis went outside to speak
with him and, almost immediately, the two began speaking with raised voices. Petitioner
proceeded to enter the house, and Davis yelled to Hardin to call 9-1-1. Petitioner encountered
Hardin in the primary bedroom and struck him repeatedly in the head with a firearm. Hardin was
able to escape, fled to a neighbor’s home to summon help, and heard two gunshots separated by
a few seconds. Petitioner had shot and killed Davis, then turned the gun on himself and shot
himself under the chin. The bullet exited out his forehead, but he survived.
Based upon the foregoing, the Benton County Grand Jury charged Petitioner with one
count of Murder, one count of Assault in the Second Degree, and four counts of Burglary in the
First Degree. Respondent’s Exhibit 102. Petitioner was represented by two attorneys and, on
March 26, 2008, defense counsel gave notice of Petitioner’s intent to introduce expert testimony
to establish the affirmative defense of Extreme Emotional Disturbance (“EED”). 2 The defense
retained psychologist Stephen Scherr to evaluate Petitioner, and Dr. Scherr provided his written
report to the defense on May 12, 2008. He diagnosed Petitioner with numerous maladies and
noted that he suffered from “long-term anxiety beginning in childhood” and was “a socially
2 Under ORS 163.135(1)(a), a criminal defendant establishes the affirmative defense of EED if
“the homicide was committed under the influence of extreme emotional disturbance if the
disturbance is not the result of the person’s own intentional, knowing, reckless or criminally
negligent act and if there is a reasonable explanation for the disturbance.” A defendant who
proves an EED defense establishes a mitigating circumstance that reduces his criminal liability
from what would otherwise be intentional murder to manslaughter in the first degree. ORS
163.118.
3 – OPINION AND ORDER
awkward, somewhat disorganized and naive young man.” Respondent’s Exhibit 115, p. 16. Dr.
Scherr concluded that at the time of Davis’ death, Petitioner was functioning “with an extreme
emotional disturbance (ORS 163.115) . . . that was not the result of his own intentional, knowing,
or a reckless or criminally negligent act.” Id at 18. Although Dr. Scherr had reviewed Dr.
Sneddon’s notes that indicated Petitioner potentially had Asperger’s syndrome, Dr. Scherr’s
report included no such diagnosis.
Seven months later, Petitioner proceeded with a bench trial. The defense called Sneddon
to recount the social history Petitioner had related to him during his hospital visit on August 5,
2007. He testified that he put Asperger’s as a “rule-out” that required further exploration because
Petitioner was shy, demonstrated difficulty with picking up on social cues, was not making
proper eye contact. Trial Transcript, pp. 375-77, 381. He explained,
When I talked with him about his social history he had indicated
that he had a difficulty with making friends, he had a hard time
with his peer group. He had talked about some difficulties in
communication when he was younger, and then he – as far as just
the – just his observation of watching him as far as normal eye
contact and smiling and – or his affect was not normally what
would you put as far as congruent to what was happening for him.
Trial Transcript, pp. 375-76. Sneddon also testified that Asperger’s is essentially highfunctioning autism. Id at 378.
The defense also called Dr. Scherr. Scherr testified that Petitioner had odd social habits,
including a penchant for smiling inappropriately. Id at 561. At that point, the State objected on
the basis that Petitioner’s “personality, which shyness clearly is, are not admissible” to support
an EED defense under Oregon law. Id. The trial judge sustained the objection, and one of
Petitioner’s attorneys continued to press the issue:
4 – OPINION AND ORDER
Defense:
Some of these factors go to form [Scherr’s]
diagnosis in this case, which is what he’s attempting to do, is make
a diagnosis of Mr. Jensen at the time, and to do that he has to look
at background materials and factors that are not necessarily what
you’d call personality characteristics. Certainly Asperger’s is
relevant to – to this situation.
Court:
There’s no evidence of Asperger’s in the case that
I’m – I’m aware of.
Defense:
That was – Jeffrey Sneddon testified that he –
Court:
He ruled it out.
Defense:
That’s in his notes.
Court:
He ruled it out.
Defense:
No, he didn’t say rule it out. Rule out – I’ll ask
Doctor Scherr what “rule out” means.
State:
Your Honor, my recollection is that Mr. Sneddon
said that Asperger’s should be ruled out, that it’s something that
should be evaluated but –
Court:
That was my recollection of the testimony.
Defense:
Right. He didn’t say he ruled it out. He said in fact
it was a consideration, and all the things that Doctor Scherr is
talking about are things that Mr. Sneddon talked about.
Court:
Well, he may testify with regard to Asperger’s to
the extent that that may be a mental handicap, but other
characteristics such as shyness would not be admissible and I’ll
sustain the State’s objection on those grounds.
Id at 562-63.
Shortly thereafter, the prosecutor objected when Scherr testified to a diagnosis of
Asperger’s syndrome for Petitioner. The objection was based on the fact that Scherr had not, in
fact, diagnosed Asperger’s within the report that the defense had disclosed to the prosecutor.
Scherr admitted that such a diagnosis was not contained in his report, but noted that the report
5 – OPINION AND ORDER
had mentioned petitioner “as a high functioning autistic, which is a component of Asperger’s.” Id
at 563; Respondent’s Exhibit 115, p. 8. For her part, defense counsel conceded that Scherr had
not made an Asperger’s diagnosis at the time he produced his report. Trial Transcript, p. 566.
When the Court asked whether the new diagnosis had been shared with the State, the prosecutor
stated, “this is the first time I’m hearing of it, is as the doctor is talking.” Id. Due to the lack of
notice to the prosecution, the trial judge granted the State’s motion to preclude Dr. Scherr from
testifying as to a diagnosis of Asperger’s syndrome. Id at 566-67.
Dr. Scherr proceeded with his testimony, stating that he had reviewed the police reports,
all mental health reports, medical reports, and interviewed members of Petitioner’s family, and
his pastor since the age of 17. This led him to diagnose Petitioner with major depressive disorder
with psychotic features, dysthymic disorder, post-traumatic stress disorder, alcohol abuse,
anxiety, and an avoidant personality disorder with dependent features. Respondent’s Exhibit 124,
p. 4. Dr. Scherr explained that Petitioner suffered from significant social anxiety, had trouble
connecting with his peers, and felt that animals were among his closest friends. Trial Transcript,
pp. 572-75. He opined that when Davis broke up with Petitioner, it was particularly devastating
for him given his social difficulties. Dr. Scherr explained that the loss of the relationship was
more than Petitioner could bear, and he experienced an episode of psychotic depression that led
to Davis’ homicide. Id at 574-77, 599-600.
The prosecution called its own expert witness, psychologist Dr. Frank Colistro. He
expressed his opinion that EED violence is reactive in nature, a response to a sudden stressor for
which a person is unprepared. Id at 661. He explained that Petitioner’s actions did not reflect
reactive violence. Instead, when Davis broke off the relationship, “[w]e then have obsessive
following, stalking type behavior, further manipulative behavior.” Id at 663. In the days leading
6 – OPINION AND ORDER
up to the homicide, Petitioner was very agitated but suddenly became calm, an indication that he
had “come up with a plan to heal himself.” Id. Colistro stated that this led to proactive violence
that was not the result of EED.
The trial judge rejected the EED defense, convicted Petitioner on all counts, and
sentenced him to life in prison with the possibility of parole after a minimum of 25 years on the
Murder charge. Id at 784. The judge imposed a consecutive 70-month sentence for the Assault in
the Second Degree charge related to Petitioner’s attack on Hardin, and a 60-month concurrent
sentence on the four Burglary convictions which all merged for purposes of sentencing. Id at
784-85. Petitioner took a direct appeal, but later voluntarily dismissed the appeal. Respondent’s
Exhibits 104 & 105.
Petitioner next filed for post-conviction relief (“PCR”) in Marion County where the PCR
court denied relief on all of his claims. Respondent’s Exhibit 142. The Oregon Court of Appeals
issued a written per curiam opinion wherein it reversed and remanded the case to the Marion
County Circuit Court due to the inadequate form of the PCR judgment. Jensen v. Premo, 282 Or.
App. 905, 385 P.3d 1276 (2016). On remand, the PCR court once again denied relief and issued
a judgment that conformed with Oregon law. Respondent’s Exhibit 149. The Oregon Court of
Appeals affirmed that decision without opinion, and the Oregon Supreme Court denied review.
Respondent’s Exhibits 154 & 155.
Following the conclusion of Petitioner’s state court proceedings, on August 27, 2020, this
Court appointed counsel to represent Petitioner in this federal habeas case. With the assistance of
counsel, Petitioner filed his Amended Petition for Writ of Habeas Corpus (#53) in which he
raises six grounds for relief with multiple sub-claims. Respondent asks the court to deny relief on
the Amended Petition because: (1) with the exception of Ground II, Paragraph E, Petitioner’s
7 – OPINION AND ORDER
claims are either untimely, or they are procedurally defaulted by virtue of his failure to fairly
present them to Oregon’s state courts for consideration; and (2) the PCR court properly and
reasonably denied relief on Ground II(E).
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 Supreme Court of the
United States;" or (2) "based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A state court decision is
"contrary to . . . clearly established precedent if the state court applies a rule that contradicts the
governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of
facts that are materially indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a result different from [that] precedent." Williams v. Taylor, 529 U.S. 362,
405-06 (2000).
Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may
grant relief "if the state court identifies the correct governing legal principle from [the Supreme
Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id at
413. The "unreasonable application" clause requires the state court decision to be more than
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 that the state court's
decision conflicts with [the Supreme] Court's precedents. It goes no farther." Harrington v.
Richter, 562 U.S. 86, 102 (2011).
8 – OPINION AND ORDER
Twenty-eight U.S.C. § 2254(d)(2) allows a petitioner to “challenge the substance of the
state court’s findings and attempt to show that those findings were not supported by substantial
evidence in the state court record.” Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012). A
state court renders an unreasonable determination of the facts if it “plainly misapprehends or
misstates the record in making its findings or where the state court has before it, yet apparently
ignores, evidence that supports petitioner’s claim.” Andrew v. Davis, 944 F.3d 1092, 1107 (9th
Cir. 2019) (internal quotations omitted). 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,’ especially because we
must be ‘particularly deferential to our state-court colleagues.’” Hernandez v. Holland, 750 F.3d
843, 857 (9th Cir. 2014) (quoting Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004)).
II.
Unargued Claims
As mentioned above, with the assistance of counsel Petitioner filed an Amended Petition
in which he raises six grounds for relief. However, in his briefing he argues only his Ground
II(E) claim that one of his trial attorneys was ineffective for failing to adequately consult with
Dr. Scherr to ensure he made an appropriate diagnosis. Not only has he not carried his burden of
proof as to his unargued claims, but the Court finds Respondent’s procedural arguments to be
well taken. Accordingly, Petitioner’s unargued claims do not entitle him to relief. See 28 U.S.C.
§ 2248 ("The allegations of a return to the writ of habeas corpus or of an answer to an order to
show cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except to
the extent that the judge finds from the evidence that they are not true."); see also Silva v.
Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (Petitioner bears the burden of proving his claims).
9 – OPINION AND ORDER
III.
Ground II(E): Failure to Adequately Consult with Expert Witness
Petitioner alleges that one of his trial attorneys was constitutionally ineffective when she
failed to properly prepare his defense. Specifically, he believes she should have had him
evaluated for, and diagnosed with, Asperger’s syndrome. He points out that he admitted his guilt
as to Davis’ homicide and waived his right to a jury trial, relying upon his attorneys’ ability to
present an EED defense to mitigate his culpability for the crime. Under these circumstances, he
contends that competent counsel would have been aware of the importance of an Asperger’s
diagnosis and ensured it was appropriately included in Dr. Scherr’s report so that Dr. Scherr
could testify to that diagnosis at trial.
The Court uses the general two-part test established by the Supreme Court to determine
whether Petitioner received ineffective assistance of counsel. Knowles v. Mirzayance, 556 U.S.
111, 122-23 (2009). First, Petitioner must show that his counsel's performance fell below an
objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 686-87 (1984).
Due to the difficulties in evaluating counsel's 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 defense. The
appropriate test for prejudice is whether Petitioner can show "that there is a reasonable
probability that, but for 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 of the trial. Id at 696. “The likelihood of a different result must be
substantial, not just conceivable.” Richter, 562 U.S. 86, 112 (2011) (citing Strickland, 466 U.S.
at 693). When Strickland's general standard is combined with the standard of review governing
10 – OPINION AND ORDER
28 U.S.C. § 2254 habeas corpus cases, the result is a "doubly deferential judicial review."
Mirzayance, 556 U.S. at 122.
During Petitioner’s PCR proceedings, he introduced expert witness evidence from Dr.
Norvin Cooley, a clinical psychologist. Dr. Cooley stated in his report that Petitioner “clearly
suffers from a pervasive developmental delay and that based on the diagnostic criterial
applicable, at the time of the evaluation, a diagnosis of Asperger’s Disorder would have been
applicable.” Respondent’s Exhibit 124, p. 13. With respect to how such a diagnosis might have
affected Petitioner’s trial, Cooley opined that while one could not predict its impact with
certainty, the trier of fact did not have the opportunity to understand the impact such a diagnosis
would have had on Petitioner’s development and his behavior at the time he killed Davis. Id at
14.
The PCR court denied relief on Petitioner’s claim as follows:
The Trial Court had all the clinical information before it to
evaluate the testimony of Dr. Scherr and Dr. Colistro. Dr. Cooley’s
expert testimony did not disagree with Dr. Scherr’s expert
testimony or the testimony of Jeffrey O. Sneddon, the licensed
social worker.
Petitioner has failed to meet his burden in proving that trial counsel
was ineffective regarding the Asperger’s diagnosis given the
symptoms were testified to by two mental health professionals and
advanced by another. The Petitioner has failed to establish that he
was prejudiced. Petitioner has failed to prove the claim.
Respondent’s Exhibit 149, pp. 4-5.
As an initial matter, Petitioner faults trial counsel for not confirming that Dr. Scherr’s
report contained the Asperger’s diagnosis, but this contention necessarily relies upon Dr. Scherr
having made a timely Asperger’s diagnosis for inclusion in the report. Nothing in the record
shows that Dr. Scherr simply forgot to add the diagnosis to his report. To the contrary, defense
11 – OPINION AND ORDER
counsel expressed her belief that Dr. Scherr diagnosed Petitioner with Asperger’s syndrome after
he produced his report. When the prosecutor objected to Dr. Scherr’s testimony regarding his
Asperger’s diagnosis, defense counsel specifically stated, “I don’t think he made the diagnosis at
the time but he has in retrospect . . . and, what he’s saying, I believe, is that at the time he didn’t
think of that. . . .” Trial Transcript, p. 566.
During Petitioner’s PCR hearing, when the State’s attorney asked Dr. Cooley whether Dr.
Scherr’s diagnosis of Asperger’s “was an ‘a-ha moment’” that occurred to him during the course
of his trial testimony, Dr. Cooley responded, “That’s certainly what it appeared to be, yes.”
Respondent’s Exhibit 141, p. 150. It was Dr. Cooley’s opinion that Dr. Scherr reached this new
diagnosis either during or shortly before trial, and “if you go through his transcript, he basically
says, oops, you know, I should have [diagnosed Asperger’s syndrome].” Id at 139, 150. Thus, the
record does not support the proposition that Dr. Scherr diagnosed Petitioner with Asperger’s in
time to include it in the report he produced approximately nine months prior to trial.
Consequently, counsel could not reasonably have been expected to ensure the inclusion of such a
diagnosis when she checked the report for errors. 3
In addition, Petitioner does not point to any materials counsel improperly withheld from
Dr. Scherr that prevented him from making a timelier diagnosis. In the context of an ineffective
assistance of counsel claim, the inquiry is whether trial counsel provided Scherr with a
reasonable opportunity to diagnose Petitioner. See, e.g., Earp v. Cullen, 623 F.3d 1065, 1077 (9th
Cir. 2010) (“An expert’s failure to diagnose a mental condition does not constitute ineffective
3 Counsel did, in fact, review the report and caught a typographical error wherein Dr. Scherr had
mistakenly indicated in his report that Petitioner had “homicidal thoughts” with respect to Davis.
After counsel flagged the issue, Dr. Scherr corrected the report to read that Petitioner had
experienced “no homicidal thoughts” toward Davis. Compare Respondent’s Exhibit 115 at 13
with Respondent’s Exhibit 115 at 14; Trial Transcript, pp. 549-50.
12 – OPINION AND ORDER
assistance of counsel, and [Petitioner] has no constitutional guarantee of effective assistance of
experts.”) (emphasis in original); Babbitt v. Calderon, 151 F.3d 1170, 1174 (9th Cir. 1998)
(counsel is obligated only to see that a psychological evaluation takes place, not ensure the
trustworthiness of the expert’s conclusions). All indications are that she did so, including when
she supplied Dr. Scherr with Jeffrey Sneddon’s notes that mentioned the possibility of Petitioner
having Asperger’s syndrome. See Respondent’s Exhibit 115, pp. 1-3; Trial Transcript, p. 565;
Memo in Support (#99), p. 16. In this respect, counsel’s performance did not fall below an
objective standard of reasonableness.
Even assuming trial counsel could be faulted for the absence of an Asperger’s diagnosis
in Dr. Scherr’s report, Petitioner must still prove that counsel’s error prejudiced him. Although
Dr. Scherr was not permitted to testify regarding an Asperger’s diagnosis, he and Sneddon both
testified that Petitioner demonstrated symptoms that were consistent with Asperger’s syndrome
and which supported the EED defense. Respondent’s Exhibit 149, pp. 4-5. Dr. Scherr addressed
issues such as Petitioner’s inability to read social cues, social immaturity and resulting struggles,
major anxiety condition that impacted his social interactions, his perspective that animals were
among his closest friends, his moral aversion to hugging anyone to whom he was not related, and
his lack of any romantic relationship prior to his involvement with Davis. Trial Transcript,
pp. 561-80. As discussed above, Sneddon had previously testified that a potential diagnosis for
Asperger’s needed to be explored given that Petitioner demonstrated many of these same
characteristics. Dr. Scherr also stated during questions in aid of objection that while his report
did not include an Asperger’s diagnosis, it did mention Petitioner “as a high functioning autistic,
which is a component of Asperger’s.” Id at 565. This mimicked Sneddon’s testimony that
Asperger’s Syndrome amounts to high-functioning autism. Id at 378. It is unclear why Dr. Scherr
13 – OPINION AND ORDER
could not have referenced his autism diagnosis in lieu of an Asperger’s diagnosis at trial with no
adverse impact on Petitioner. As the PCR court determined, the trial judge had all of the clinical
information before him, and Dr. Cooley did not disagree with the contents of Dr. Scherr’s report
or the testimony of Jeffrey Sneddon. Respondent’s Exhibit 149, pp. 4-5. Given all of the
foregoing, it is difficult to see how an Asperger’s diagnosis in Dr. Scherr’s report would have
altered the outcome of this case.
Moreover, during Petitioner’s PCR proceedings, his expert described the relatively
limited benefit of allowing Dr. Scherr to testify to an Asperger’s diagnosis. Dr. Cooley testified
that an “EED is a very complicated defense and it’s hard frankly for juries to understand it.”
Respondent’s Exhibit 141, p. 142. He concluded that “any time that you can provide a trier of
fact with a way to shorthand the data that makes the data understandable . . . it’s very helpful.”
Respondent’s Exhibit 141, p. 142. This case did not, however, involve a jury, and the trial judge
was in a much better position than an average juror to evaluate how the evidence adduced at trial
fit into Oregon’s EED defense without having the “shorthand” of an Asperger’s diagnosis to
which to refer.
Finally, Dr. Scherr’s inability to testify to an Asperger’s diagnosis did not impact the trial
judge’s consideration of the ultimate issue: whether a reasonable person enduring Petitioner’s
afflictions and characteristics, who had recently experienced the unexpected loss of his first
romantic relationship, suffered from an extreme emotional disturbance at the time he killed his
former romantic partner. There was ample opportunity for the defense to present medical
evidence equivalent to the Asperger’s diagnosis that Dr. Scherr did not make, and trial counsel
accurately summed this up when she stated that “additional testimony regarding Asperger’s was
not particularly helpful or relevant, and . . . it would not have had any effect on the outcome of
14 – OPINION AND ORDER
the case, especially considering the nature of the defense and the evidence presented at trial.”
Respondent’s Exhibit 135, p. 3. For all of the foregoing reasons, the PCR court did not make an
unreasonable determination of the facts, nor did it unreasonably apply clearly established federal
law. At a minimum, the decision was not so unreasonable that no fairminded jurist could agree
with it. Habeas corpus relief is therefore not warranted.
CONCLUSION
For the reasons identified above, the Amended Petition for Writ of Habeas Corpus (#53)
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).
IT IS SO ORDERED.
2/21/2024
DATE
15 – OPINION AND ORDER
Adrienne Nelson
United States District Judge
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