Pervish v. Kelly
Filing
82
OPINION AND ORDERL The Second Amended Petition for Writ of Habeas Corpus 58 is denied. (See 16-page opinion for more information.) Signed on 6/9/2022 by Judge Marco A. Hernandez. (dsg)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
BENJAMIN E. PERVISH,
Case No. 6:17-cv-01129-HZ
Petitioner,
OPINION AND ORDER
v.
BRANDON KELLY,
Respondent.
Anthony D. Bornstein
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
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HERNANDEZ, District Judge.
Petitioner brings this habeas corpus case pursuant to 28
U.S.C. § 2254 challenging the legality of his Multnomah County
convictions
dated
September
29,
2006.
For
the
reasons
that
follow, the Amended Petition for Writ of Habeas Corpus (#58) is
denied.
BACKGROUND
Kristy Kelly, Angela Walford, and Teresa McAllister worked
for Petitioner as prostitutes. The three women initially began
working
for
working
relationship
behavior,
informed
Petitioner
and
voluntarily,
due
to
intimidation
authorities
about
but
continued
Petitioner’s
tactics.
her
threats,
McAllister
involuntary
with
the
assaultive
ultimately
arrangement
with
Petitioner, leading to his arrest.
Following his initial Indictment dated January 9, 2001, the
Multnomah County Grand Jury re-indicted Petitioner the following
month on a total of 40 charges pertaining to Kelly, Walford, and
McAllister: 24 counts of promoting prostitution, 15 counts of
compelling
witness.
prostitution,
Respondent’s
and
one
Exhibits
count
102
&
of
103.
tampering
The
trial
with
a
court
granted Petitioner’s unopposed motion for judgment of acquittal
as to two counts of promoting prostitution (Counts 10 and 20)
and one count of compelling prostitution (Count 30) where there
was no named victim for those charges. A
non-unanimous jury
convicted Petitioner of the remaining 37 counts, and the trial
court sentenced him to 450 months in prison. Trial Transcript,
pp. 761-64.
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Case 6:17-cv-01129-HZ
Petitioner
took
a
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appeal
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wherein
he
raised
six
assignments of error. As one of those assignments of error, he
alleged that the trial court erred when it failed to instruct
the
jury
on
each
promoting
prostitution
and
compelling
prostitution charge that at least 10 of its members must agree
on a specific factual incident involving a particular victim.
Because he had not requested such an instruction at trial, the
assignment of error was unpreserved for appellate review. As a
result, he could only prevail if he established “plain” error,
i.e.,
that
the
trial
court’s
errors
were
obvious
and
not
reasonably in dispute. See Ailes v. Portland Meadows, Inc., 312
Or. 376, 381, 823 P.2d 956 (1991). The Oregon Court of Appeals
determined that Petitioner met this standard with respect to
promoting
prostitution
Counts
33
and
35
because,
without
a
concurrence instruction, the jury might have been confused as to
the alleged conduct underlying each count. State v. Pervish, 202
Or. App. 442, 461-63, 123 P.3d 285 (2005). The Oregon Court of
Appeals therefore remanded the case back to the trial court for
further proceedings on Counts 33 and 35.
The
Count
31
Oregon
Court
conviction
of
Appeals
(without
also
reversed
possibility
for
Petitioner’s
retrial)
for
witness tampering as to Kelly because, as the State conceded,
Kelly had not been summoned to any official proceeding at the
time Petitioner attempted to prevent her from testifying. Id at
467. The Oregon Court of Appeals otherwise affirmed the trial
court’s decision, and the Oregon Supreme Court denied review.
340 Or. 308, 132 P.3d 28 (2006).
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Upon remand, the trial court granted the State’s motion to
dismiss
Counts
33
and
35
and
sentenced
Petitioner
to
an
aggregate 420-month prison term. Petitioner once again appealed,
but
the
Oregon
Court
of
Appeals
affirmed
the
resentencing
proceedings without issuing a written opinion, and the Oregon
Supreme Court denied review. State v. Pervish, 225 Or. App. 219,
200 P.3d 642, rev. denied, 346 Or. 213, 208 P.3d 963 (2009).
Petitioner next filed for post-conviction relief (“PCR”) in
Marion County where, pertinent to this habeas corpus case, he
alleged that his trial attorney was ineffective for failing to
request a jury concurrence instruction to ensure that at least
10
jurors
agreed
as
to
which
facts
supported
each
guilty
verdict. Respondent’s Exhibit 122. The PCR court denied relief
on all of his claims. Respondent’s Exhibit 171. The Oregon Court
of Appeals affirmed the PCR court’s decision without issuing a
written opinion, and the Oregon Supreme Court denied review.
Pervish v. Premo, 249 Or. App. 444, 380 P.3d 1231 (2016), rev.
denied, 361 Or. 350, 393 P.3d 1182 (2017).
On August 26, 2020, and with the assistance of appointed
counsel, Petitioner filed his Second Amended Petition for Writ
of Habeas Corpus wherein he raises six grounds for relief (which
include several sub-claims). Respondent asks the Court to deny
relief on the Second Amended Petition because: (1) Petitioner
fails to sustain his burden of proof on the claims he does not
argue in his briefing; (2) Petitioner failed to fairly present
most of his argued claims to Oregon’s state courts, leaving them
procedurally defaulted; and (3) the PCR court’s decision denying
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relief on the ineffective assistance of counsel claim contained
within Ground I(A)(1) was reasonable.
DISCUSSION
I.
Unargued Claims
Among the many claims contained within his Second Amended
Petition, Petitioner limits his briefing to the following:
I(A): Trial counsel was ineffective when he
failed to: (1) request a jury concurrence
instruction; and (2) compel the State to
supply sufficient information regarding each
count to allow Petitioner to defend against
it;
I(E): Trial counsel was ineffective for
failing to move for a judgment of acquittal
on
Counts
37
and
40
(compelling
prostitution) on the basis that evidence of
the specific act of compulsion the State
used to prove those charges had not been
presented to the Grand Jury;
I(G): Appellate counsel was ineffective for
failing to argue that the imposition of
consecutive sentences on various counts was
contrary to Oregon law;
II: The trial court violated Petitioner’s
right to due process when it unlawfully
imposed consecutive sentences;
III: The prosecutor engaged in misconduct
when he failed to disclose to Petitioner
that
McAllister
had
agreed
to
testify
against him in exchange for, or in hopes of,
receiving benefits from the State regarding
her participation in a robbery in Hood River
County; and
IV: The trial court violated Petitioner’s
right to a jury trial and to due process
when it failed to require that at least 10
jurors concur as to the factual basis for
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each charge of promoting prostitution
each count of compelling prostitution.
Petitioner
does
not
argue
the
merits
of
and
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
his
burden
of
proof
with
respect
to
these
unargued claims. See Silva v. Woodford, 279 F.3d 825, 835 (9th
Cir. 2002) (Petitioner bears the burden of proving his claims).
Even if Petitioner had briefed the merits of these claims, the
Court
has
examined
them
based
upon
the
existing
record
and
determined that they do not entitle him to relief.
II.
Exhaustion and Procedural Default
Respondent
asserts
that,
with
the
exception
of
Ground
I(A)(1), Petitioner failed to fairly present any of his argued
claims to Oregon’s state courts, leaving them ineligible for
federal habeas corpus review because Petitioner is no longer
entitled to pursue the claims in state court. Petitioner has not
responded to these procedural arguments.
A
habeas
petitioner
must
exhaust
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 those claims. Rose v. Lundy, 455
U.S. 509, 519 (1982). "As a general rule, a petitioner satisfies
the
exhaustion
claim
to
required
the
by
requirement
appropriate
the
state
by
state
courts,
fairly
presenting
courts
thereby
.
.
.
the
in
'affording
federal
the
the
manner
state
courts a meaningful opportunity to consider allegations of legal
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error.'" Casey v. Moore, 386 F.3d 896, 915-916 (9th Cir. 2004)
(quoting Vasquez v. Hillery, 474 U.S. 254, 257, (1986)).
If a habeas litigant failed to present his claims to the
state courts in a procedural context in which the merits of the
claims were actually considered, the claims have not been fairly
presented to the state courts and are therefore not eligible for
federal habeas corpus review. Edwards v. Carpenter, 529 U.S.
446, 453 (2000); Castille v. Peoples, 489 U.S. 346, 351 (1989).
In this respect, 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.
Carpenter,
Thompson,
501
U.S.
529
U.S.
722,
750
446,
451
(1991).
(2000);
If
a
Coleman
petitioner
v.
has
procedurally defaulted a claim in state court, a federal court
will not review the claim unless the petitioner shows "cause and
prejudice" for the failure to present the constitutional issue
to
the
state
court,
or
makes
a
colorable
showing
of
actual
innocence. Gray v. Netherland, 518 U.S. 152, 162 (1996); Sawyer
v. Whitley, 505 U.S. 333, 337 (1992); Murray v. Carrier, 477
U.S. 478, 485 (1986).
Petitioner argues several of the ineffective assistance of
counsel claims he raises within Ground I of his Second Amended
Petition, but he presented only a single claim of ineffective
assistance of counsel to the Oregon Supreme Court during his PCR
review: whether trial counsel was ineffective when he failed to
“ask for a jury concurrence instruction when [he] was charged
with
multiple
counts
of
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promoting
prostitution
and
multiple
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counts of compelling prostitution where many different factual
scenarios were presented to the jury to support each count[.]”
Respondent’s Exhibit 174, p. 5. This claim corresponds to Ground
I(A)(1) of the Second Amended Petition. Where Petitioner failed
to fairly present Grounds I(A)(2), I(E), and I(G) to Oregon’s
state courts, and because the time to do so passed long ago,
those claims are procedurally defaulted.
As Ground II, Petitioner asserts that the trial court’s
imposition
of
Amendment.
Although
Supreme
consecutive
Court
sentences,
it
his
sentences
Petition
challenged
did
so
the
only
violates
for
Review
legality
as
a
of
matter
the
Fourteenth
in
the
his
of
Oregon
consecutive
state
law
when
Petitioner argued that the trial court failed to comply with ORS
137.123. Respondent’s Exhibit 115. Petitioner did not reference
the Fourteenth Amendment or
omission
is
critical
any other federal law.
because
a
litigant
must
Id. This
specifically
indicate the federal nature of his claim at each and every level
of his state court proceedings in order to fairly present the
issue and preserve it for federal habeas corpus review. Reese v.
Baldwin, 541 U.S. 27, 32 (2004). “If a petitioner fails to alert
the
state
court
constitutional
regardless
of
to
the
claim,
its
fact
his
similarity
that
he
federal
to
the
is
raising
claim
is
issues
a
federal
unexhausted
raised
in
state
court.” Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996); see
also Duncan v. Henry, 513 U.S. 364, 366 (1995) (“mere similarity
of claims is insufficient to exhaust.”). Accordingly, Petitioner
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failed to fairly present his Ground II due process claim to
Oregon’s state courts, and the claim is now defaulted.
As
Ground
III,
Petitioner
alleges
that
the
prosecutor
engaged in misconduct by failing to disclose that McAllister
agreed to testify in exchange for favorable treatment in her own
criminal case in Hood River County. Petitioner raised no such
claim in his Petition for Review to the Oregon Supreme Court,
leaving the claim procedurally defaulted.1 Respondent’s Exhibit
174.
Finally, as Ground IV, Petitioner contends that the trial
court erred when it failed to instruct the jury on concurrence
with
respect
to
each
charge
of
promoting
prostitution
and
compelling prostitution, depriving him of his rights to a jury
trial and to due process. However, as Petitioner conceded during
his direct appeal, he failed to preserve the claim for appellate
review. Respondent’s Exhibit 104, p. 15 (“defendant acknowledges
that this claim of error is not preserved.”). As recounted in
the Background of this Opinion, with the exception of Counts 33
and 35 which are not at issue in this case, the Oregon Court of
Appeals declined to excuse the procedural deficiency and reach
the merits of claim because he failed to demonstrate that the
trial court’s failure to give a concurrence instruction amounted
1
At the end of his supporting memorandum, Petitioner asks the Court to allow
him to subpoena the Hood River County and Multnomah County District Attorneys
to produce any documents they have regarding Ms. McAllister. Petitioner has
not demonstrated the good cause necessary to justify discovery in a habeas
corpus case, especially where this claim is procedurally defaulted and
ineligible for merits review. See Bracy v. Gramley, 520 U.S. 899, 908-909
(1997) (good cause is shown where specific allegations show that there is
reason to believe a litigant might be entitled to relief); Rule 6(a) of the
Rules Governing Section 2254 Cases.
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to “plain error” under Oregon law. Pervish, 202 Or. App. at 45960. In this regard, Petitioner failed to present Ground IV to
Oregon’s state courts in a procedural context in which those
courts
actually
considered
the
merits
of
the
claim.
See
Wainright v. Sykes, 433 U.S. 72, 88-90 (1977) (recognizing the
importance of honoring state contemporaneous objection rules in
federal habeas corpus proceedings). Because Petitioner may no
longer raise his Ground IV claim in Oregon’s state courts, it is
procedurally defaulted.
III. The Merits
As
Ground
attorney
request
was
a
I(A)(1),
Petitioner
constitutionally
jury
concurrence
alleges
that
ineffective
when
instruction
where
his
he
trial
failed
the
to
State’s
evidence tended to show a greater number of offenses than were
actually
charged
in
the
case.
He
emphasizes
that
his
case
reflected a large number of incidents of prostitution involving
many different clients at a variety of locations. Given these
variables, and in the absence of a concurrence instruction, he
reasons that the jury impermissibly rested its guilty verdicts
as
to
the
promoting
prostitution
and
compelling
prostitution
charges on disparate factual underpinnings.
A.
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
10 – OPINION AND ORDER
Court
of
the
United
States;"
or
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(2) "based
on
an
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of
the
facts
in
light of the evidence presented in the State court proceeding."
28
U.S.C.
to . . .
§
2254(d).
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] 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).
Twenty-eight
“challenge
attempt
to
substantial
the
U.S.C.
substance
show
that
evidence
in
§
2254(d)(2)
of
those
the
the
state
findings
state
allows
court’s
were
court
a
not
petitioner
findings
supported
record.”
Hibbler
to
and
by
v.
Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012). A state court
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an
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of
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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)).
B.
Analysis
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
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whether
Petitioner
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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 28 U.S.C.
§ 2254 habeas corpus cases, the result is a "doubly deferential
judicial review." Mirzayance, 556 U.S. at 122.
In State v. Boots, 308 Or. 371, 780 P.2d 725 (1989), the
Oregon Supreme Court held that Oregon juries must agree as to
all material elements of a crime in order to properly convict a
criminal
defendant.
Shortly
before
Petitioner’s
trial,
the
Oregon Supreme Court stated, “It has been clear in Oregon, at
least since Boots, that a jury must be instructed concerning the
necessity of agreement on all material elements of a charge in
order to convict.” State v. Lotches, 331 Or. 455, 472, 17 P.3d
1045 (2000). As a result, if a prosecutor does not specifically
elect the occurrence on which the State wishes to proceed as to
a particular charge, the defendant
is entitled to
a
“Boots”
instruction to ensure concurrence.
The
viability
of
Petitioner’s
ineffective
assistance
of
counsel claim necessarily relies upon the applicability of Boots
to his case. Oregon’s state courts issued two written decisions
addressing
this
question.
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First,
during
his
direct
appeal,
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Petitioner argued that the trial judge erred by failing to give
a
Boots
instruction
with
regard
to
the
numerous
promoting
prostitution and compelling prostitution charges he faced. The
Oregon Court of Appeals focused its analysis on whether the jury
needed clarity on the identity of each customer, and concluded
that whether such information was a material element
of the
crime (thus requiring a Boots instruction) or simply a factual
detail (not necessitating a Boots instruction) was subject to
reasonable
dispute.
Pervish,
202
Or.
App.
at
459-64.
Accordingly, aside from the reversal of Petitioner’s convictions
on Counts 33 and 35 discussed above, the Oregon Court of Appeals
concluded that because the resolution of the Boots issue was
subject to reasonable dispute, Petitioner failed to overcome his
failure to preserve the issue in the trial court. Pervish, 202
Or. App. at 459-467. The Oregon Court of Appeals therefore did
not resolve the merits of the Boots issue with respect to the
convictions Petitioner challenges in this habeas case.
When
Petitioner
raised
his
Ground
I(A)(1)
ineffective
assistance of counsel claim during his state collateral review,
the
PCR
court
squarely
addressed
the
concurrence
issue
and
determined that a Boots instruction was not required under the
facts of Petitioner’s case:
4.
It is not required that the state prove
who each of the customers was for each act
of prostitution. That would usually be
impossible and ludicrous. It must prove that
there were as many customers as counts.
There was sufficient evidence in this case
on that issue.
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15. This is not a case in which the
concurrence instruction is required. The
jurors did not have to agree on any
particular
incident
of
prostitution
committed with any particular “john.” They
simply had to agree on how many acts of
prostitution were committed. Similarly, the
state was not required to elect
[the
occurrence on which it was proceeding].
Respondent’s Exhibit 171, p. 5.
The PCR court’s determination that Petitioner’s case did
not require a Boots instruction is binding on this Court. See
Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Estelle v. McGuire,
502 U.S. 62, 67-68 (1991) ("[W]e reemphasize that it is not the
province
of
a
determinations
federal
on
habeas
state-law
court
to
reexamine
questions.").
state-court
Where
no
such
instruction was required, trial counsel’s performance did not
fall below an objective standard of reasonableness when he did
not
request
one,
and
Petitioner
cannot
establish
that
he
suffered prejudice as a result of trial counsel’s performance.
Petitioner points out that Oregon’s state courts began to
apply
the
Boots
instruction
more
expansively
in
the
years
following his 2001 trial. See, e.g., State v. Pipkin, 354 Or.
513 (2013); State v. Ashkins, 357 Or. 642 (2015); Mellerio v.
Nooth, 279 Or. App. 419, 379 P.3d 560 (2016); State v. Rolfe,
304 Or. App. 461, 468 P.3d 503 (2020). Oregon’s development of
its case law well after Petitioner’s trial does not empower this
Court to disagree with the PCR court’s interpretation of state
law. See Estelle, 502 U.S. at 67 (the correctness of a statecourt ruling on a state evidentiary issue “is no part of a
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federal court’s habeas review of a state conviction.”); see also
Kleve v. Hill, 243 F.3d 1149, 1151 (9th Cir. 2001). Even if this
were not so, and further assuming changes in Oregon law since
Petitioner’s trial establish that he would now be entitled to a
Boots
instruction
under
the
facts
of
his
case,
he
would
be
unable to prevail on his ineffective assistance of counsel claim
because
he
cannot
fault
changes
to
Oregon
law
that
"Strickland
does
reasonable
advice
concluded.
objectively
his
attorney
occurred
not
for
well
mandate
under
not
anticipating
after
his
trial
prescience,
only
prevailing
professional
norms." Sophanthavong v. Palmateer, 378 F.3d 859, 870 (9th Cir.
2004) (citing Strickland, 466 U.S. at 690). For all of these
reasons,
the
I(A)(1)
did
PCR
court’s
not
decision
depend
to
upon
deny
an
relief
on
unreasonable
Ground
factual
determination, nor did it involve an unreasonable application of
clearly established federal law.
CONCLUSION
For
the
reasons
identified
above,
the
Second
Amended
Petition for Writ of Habeas Corpus (#58) 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.
June 9, 2022
DATE
16 – OPINION AND ORDER
Marco A. Hernandez
United States District Judge
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